>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Thomas Schopp\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-16\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, No. 16-30185\n Plaintiff-Appellee,\n D.C. No.\n v. 1:15-cr-00001-\n TMB-1\nTHOMAS SCHOPP, AKA Thomas\nHiser,\n Defendant-Appellant. OPINION\n\n Appeal from the United States District Court\n for the District of Alaska\n Timothy M. Burgess, Chief District Judge, Presiding\n\n Argued and Submitted June 10, 2019\n Anchorage, Alaska\n\n Filed September 16, 2019\n\n Before: A. Wallace Tashima, William A. Fletcher,\n and Marsha S. Berzon, Circuit Judges.\n\n Opinion by Judge Berzon\n\f2 UNITED STATES V. SCHOPP\n\n SUMMARY *\n\n\n Criminal Law\n\n The panel vacated a life sentence imposed following the\ndefendant’s guilty plea to producing child pornography in\nviolation of 18 U.S.C. § 2251(a), and remanded for\nresentencing, in a case in which the district court, applying\nthe multiple-conviction enhancement contained in 18 U.S.C.\n§ 2251(e), concluded that the defendant’s prior Alaska\nconvictions “relat[e] to the sexual exploitation of children.”\n\n The panel held that the appeal is permitted despite the\ndefendant’s appeal waiver because the appeal goes to the\nlegality of the sentence in that the defendant argues that the\nimposed life sentence was in excess of the maximum\nstatutory penalty.\n\n Applying the categorical approach, the panel held that\nthe federal generic definition of “sexual exploitation of\nchildren” is defined within § 2251 as the production of visual\ndepictions of children engaging in sexually explicit conduct.\nThe panel explained that the “relating to” term in § 2251(e)\nencompasses state offenses that are a categorical match to\nthe federal offense of production of child pornography and\nstate offenses involving the production of child pornography\n(that is, the conduct enumerated in § 2251’s various\nsubsections), and does not include offenses that entirely lack\nthe visual depictions element that separates “sexual\n\n\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. SCHOPP 3\n\nexploitation of children” from other forms of child abuse in\nthe federal criminal offense panoply.\n\n The panel held that because the defendant’s prior Alaska\nconvictions concerning the sexual abuse and sexual assault\nof minors do not require a visual depiction element, they do\nnot “relat[e] to the sexual exploitation of children” and\ncannot serve as predicate offenses for purposes of the\nmultiple-conviction enhancement in § 2251(e). The panel\nconcluded that the district court therefore erred in applying\nthe enhancement and sentencing the defendant to life\nimprisonment.\n\n The panel held that the district court’s imposition of the\nwrong sentencing enhancement was plain error that affected\nthe defendant’s substantial rights.\n\n\n COUNSEL\n\nMyra Sun (argued), Los Angeles, California, for Defendant-\nAppellant.\n\nAllison Meredith O’Leary (argued) and Kyle Reardon,\nAssistant United States Attorneys; Bryan Schroder, United\nStates Attorney; Office of the United States Attorney,\nAnchorage, Alaska; for Plaintiff-Appellee.\n\f4 UNITED STATES V. SCHOPP\n\n OPINION\n\nBERZON, Circuit Judge:\n\n Thomas Schopp pleaded guilty to producing child\npornography in violation of 18 U.S.C. § 2251(a). Section\n2251 is headed “[s]exual exploitation of children” and\ndescribes several substantive offenses. The statute’s penalty\nprovision provides, among other things, that a defendant\nwith “2 or more prior convictions . . . under the laws of any\nState relating to the sexual exploitation of children . . . shall\nbe . . . imprisoned not less than 35 years nor more than life.”\n18 U.S.C. § 2251(e) (emphasis added). Our question is\nwhether the meaning of the term “relating to the sexual\nexploitation of children” in § 2251’s enhancement provision\nshould reflect the elements of the substantive crimes\ndescribed in the same “[s]exual exploitation of children”\nstatute.\n\n Schopp has several prior Alaska convictions relating to\nthe sexual assault and sexual abuse of minors, none\ninvolving the production of child pornography. See Alaska\nStat. § 11.41.410 (1983 Supp.); Alaska Stat. §§ 11.41.438,\n11.41.436, 11.41.434 (1993). The district court concluded\nthat Schopp’s prior Alaska convictions “relat[e] to the sexual\nexploitation of children.” Applying the multiple-conviction\nenhancement contained in § 2251(e), the district court\nsentenced Schopp to life imprisonment, the maximum\nsentence permitted under that enhancement. We hold that\nSchopp’s prior Alaska convictions are not offenses “relating\nto the sexual exploitation of children” under § 2251(e), so\nthe district court improperly applied the sentencing\nenhancement.\n\f UNITED STATES V. SCHOPP 5\n\n I\n\n In August 2014, Schopp met a fifteen-year-old boy at the\ngrocery store at which they both worked in Juneau, Alaska.\nMonths later, Schopp invited the boy to his apartment and\neither recorded or photographed himself engaging in sexual\nacts with the minor on his cellphone camera. Schopp was\ncharged with one count of production of child pornography,\nin violation of 18 U.S.C. § 2251(a).\n\n Schopp initially pleaded not guilty but later sought to\nchange his plea. At the change of plea hearing, the\ngovernment established that Schopp had a number of prior\nstate convictions for sexual assault and sexual abuse of\nminors—specifically, convictions for: (1) six counts of\nsexual assault in the first degree in violation of Alaska\nStatutes § 11.41.410(a)(3), from 1988; and (2) two counts of\nsexual abuse of a minor I in violation of Alaska Statutes\n§ 11.41.434(a)(1), three counts of sexual abuse of minor II\nin violation of Alaska Statutes § 11.41.436(a)(2), and one\ncount of attempted sexual abuse of a minor III in violation\nof Alaska Statutes § 11.41.438(a)(1), from 1993.\n\n 18 U.S.C. § 2251(e) provides in full:\n\n Any individual who violates, or attempts or\n conspires to violate, this section shall be\n fined under this title and imprisoned not less\n than 15 years nor more than 30 years, but if\n such person has one prior conviction under\n this chapter, section 1591, chapter 71, chapter\n 109A, or chapter 117, or under section 920 of\n title 10 (article 120 of the Uniform Code of\n Military Justice), or under the laws of any\n State relating to aggravated sexual abuse,\n sexual abuse, abusive sexual contact\n\f6 UNITED STATES V. SCHOPP\n\n involving a minor or ward, or sex trafficking\n of children, or the production, possession,\n receipt, mailing, sale, distribution, shipment,\n or transportation of child pornography, such\n person shall be fined under this title and\n imprisoned for not less than 25 years nor\n more than 50 years, but if such person has 2\n or more prior convictions under this chapter,\n chapter 71, chapter 109A, or chapter 117, or\n under section 920 of title 10 (article 120 of\n the Uniform Code of Military Justice), or\n under the laws of any State relating to the\n sexual exploitation of children, such person\n shall be fined under this title and imprisoned\n not less than 35 years nor more than life. Any\n organization that violates, or attempts or\n conspires to violate, this section shall be\n fined under this title. Whoever, in the course\n of an offense under this section, engages in\n conduct that results in the death of a person,\n shall be punished by death or imprisoned for\n not less than 30 years or for life.\n\n(emphasis added). Taking the convictions recited by the\ngovernment into account and applying § 2251(e)’s multiple-\nconviction enhancement (without specific reference to it),\nthe district court informed Schopp that he faced a mandatory\nminimum of thirty-five years and a maximum sentence of\nlife imprisonment. At the end of the hearing, however, the\ndistrict court decided not to accept Schopp’s change of plea,\nbecause Schopp had equivocated several times as to whether\nhe wished to plead guilty.\n\n A month later, Schopp changed his mind again and\npleaded guilty, this time pursuant to a written plea\n\f UNITED STATES V. SCHOPP 7\n\nagreement. In the agreement, Schopp waived his right to\nappeal on most grounds, reserving the right to appeal only\nclaims alleging ineffective assistance of counsel and\ninvoluntariness of the guilty plea. He also stipulated to being\n“previously convicted on two prior occasions of violations\nof the laws of the State of Alaska relating to aggravated\nsexual abuse, sexual abuse, or abusive sexual conduct\ninvolving a minor,” using the language of the single-\nconviction portion of § 2251(e). (emphasis added). Despite\nthat stipulation, it is clear from the plea agreement’s repeated\nreference to two or more prior state convictions, as well as\nfrom the stipulated penalty range of thirty-five years to life,\nthat the agreement contemplated applying the multiple-\nconviction, not the single-conviction, enhancement.\n\n At the subsequent change of plea hearing, the district\ncourt, using the single-conviction enhancement language\nfrom the plea agreement, asked Schopp whether he had\nstipulated to being “convicted on two prior occasions of\nviolations of Alaska law relating to aggravated sexual abuse,\nsexual abuse, or abusive sexual conduct involving a minor.”\nSchopp confirmed that he had. The district court again\ninformed Schopp that he was subject to a penalty range of\nthirty-five years to life imprisonment, the sentencing range\nfor the multiple-conviction enhancement. This time, the\ndistrict court accepted Schopp’s plea.\n\n At sentencing, both parties sought a thirty-five-year term\nof imprisonment (which would have been available under\n§ 2251(e)’s single-conviction enhancement). The district\ncourt rejected the joint recommendation. It concluded that\nseveral sentencing factors, particularly the seriousness of the\noffense and the sentencing goals of deterrence and protecting\nthe public, warranted a harsher sentence. The district court\n\f8 UNITED STATES V. SCHOPP\n\nsentenced Schopp to life imprisonment. This appeal\nfollowed.\n\n Schopp argues on appeal that his prior Alaska\nconvictions do not “relat[e] to the sexual exploitation of\nchildren,” so the district court erred by applying § 2251(e)’s\nmultiple-conviction enhancement. That issue triggers de\nnovo review. See United States v. Sullivan, 797 F.3d 623,\n635 (9th Cir. 2015).\n\n II\n\n Before reaching the enhancement issue, we address\nwhether, given the appeal waiver, Schopp may pursue this\nchallenge to his life sentence. We have long “recognized that\nthe waiver of a right to appeal may be subject to certain\nexceptions such as claims involving . . . an illegal sentence\nimposed in excess of a maximum statutory penalty.” United\nStates v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996).\n\n Had the multiple-conviction enhancement not been\napplied, Schopp’s mandatory penalty range would have been\ntwenty-five to fifty years, the range applicable to persons\nwith a single prior conviction “relating to aggravated sexual\nabuse, sexual abuse, [or] abusive sexual contact involving a\nminor or ward.” See 18 U.S.C. § 2251(e). 1 If, as Schopp\nargues, the district court erroneously applied § 2251(e)’s\nmultiple-conviction enhancement, the imposed life sentence\n\n 1\n Schopp concedes that his prior state convictions “relat[e] to\naggravated sexual abuse, sexual abuse, [or] abusive sexual contact\ninvolving a minor or ward.” See 18 U.S.C. § 2251(e). There is support in\nthe record for that conclusion. Schopp stipulated in his plea agreement\nto being “previously convicted on two prior occasions of violations of\nthe laws of the State of Alaska relating to aggravated sexual abuse,\nsexual abuse, or abusive sexual conduct involving a minor.”\n\f UNITED STATES V. SCHOPP 9\n\nwas “in excess of [the] maximum statutory penalty.”\nBaramdyka, 95 F.3d at 843. Because Schopp’s appeal goes\nto the legality of his sentence, it is permitted despite his\nappeal waiver.\n\n III\n\n We turn to whether Schopp’s prior state convictions are\npredicate offenses for the multiple-conviction enhancement\nunder § 2251(e). The categorical approach set forth in Taylor\nv. United States, 495 U.S. 575 (1990), guides this inquiry.\nSee also Descamps v. United States, 570 U.S. 254 (2013);\nMathis v. United States, 136 S. Ct. 2243 (2016).\n\n Under the categorical approach, we first define the\nfederal generic offense. Id. at 2248. We then determine\n“whether the elements of the [state] crime of conviction\nsufficiently match the elements of [the generic federal\ncrime].” Id. In comparing the state and federal statutes, we\nmay “‘look only to the statutory definitions’—i.e., the\nelements—of a defendant’s prior offenses, and not ‘to the\nparticular facts underlying those convictions.’” Descamps,\n570 U.S. at 261 (quoting Taylor, 495 U.S. at 600). If the state\nstatute of conviction criminalizes the same or less conduct\nthan the federal generic definition of the offense, it is a\ncategorical match to the federal offense and qualifies as a\nprior conviction for federal sentencing enhancement\npurposes. Id.\n\n Where the state statute of conviction criminalizes more\nconduct than the federal generic definition of the offense, it\nis not a categorical match. In that circumstance, we\ndetermine the statute’s divisibility. Id at 262. A statute is\nindivisible if it “sets out a single . . . set of elements to define\na single crime,” even if it provides for alternative means of\ncommitting the offense. Mathis, 136 S. Ct. at 2248. A statute\n\f10 UNITED STATES V. SCHOPP\n\nis divisible if it “list[s] elements in the alternative, . . .\ndefin[ing] multiple crimes.” Id. at 2249. We apply the\nmodified categorical approach for divisible statutes, where\nwe “look[] to a limited class of documents . . . to determine\nwhat crime, [and] with what elements, a defendant was\nconvicted of.” Id.\n\n A\n\n Under the Taylor categorical approach, we begin by\ndefining the generic federal offense—“sexual exploitation of\nchildren.” We have yet to define the offense in a precedential\nopinion, so this is a matter of first impression. 2\n\n In defining a generic federal offense, we employ\nordinary principles of statutory interpretation to ascertain the\nmeaning of the relevant term, beginning with the text of the\nstatute. See Esquivel-Quintana v. Sessions, 137 S. Ct. 1562,\n1569 (2017). As additional evidence of the generic meaning\nof the federal offense we may consider related federal\nstatutes, state criminal codes, the Model Penal Code, and the\nordinary meaning of the offense. Id. at 1569–71.\n\n\n 2\n In two unpublished memorandum dispositions, we concluded that\n“sexual exploitation of children” was not defined in 18 U.S.C. § 2251\nand should therefore be defined according to its “ordinary,\ncontemporary, and common meaning of the statutory words.” See United\nStates v. Clark, 755 F. App’x 702 (9th Cir. 2019) (citations omitted);\nUnited States v. Devore, No. 17-30205, 2019 WL 2333975, at *1 (9th\nCir. May 31, 2019). Neither case actually defined the substantive term,\neach holding instead that the defendants’ prior convictions were for\noffenses “relat[ing] to the sexual exploitation of children.” Clark, 755 F.\nApp’x at 702; Devore, 2019 WL 2333975 at *1 (emphasis added). Even\nso, memorandum dispositions are nonbinding in subsequent\ndispositions, as they are nonprecedential under our circuit rules. See 9th\nCir. R. 36-3(a).\n\f UNITED STATES V. SCHOPP 11\n\n Starting with the text of the statute: Section 2251 is titled\n“[s]exual exploitation of children” and sets forth a series of\nfederal offenses, all related to the production of visual\ndepictions of minors engaging in sexually explicit conduct.\nSee 18 U.S.C. §§ 2251(a)–(d)(1). Specifically, § 2251\nsubjects to criminal conviction any person who:\n\n employs, uses, persuades, induces, entices, or\n coerces any minor to engage in, or who has a\n minor assist any other person to engage in, or\n who transports any minor in or affecting\n interstate or foreign commerce . . . with the\n intent that such minor engage in, any sexually\n explicit conduct for the purpose of producing\n any visual depiction of such conduct or for\n the purpose of transmitting a live visual\n depiction of such conduct.\n\nId. at § 2251(a); see also id. at § 2251(b) (concerning a\nparent or legal guardian who knowingly permits a minor to\nengage in sexually explicit conduct for the purpose of\nproducing visual depictions of such conduct); id.\nat § 2251(c)(1) (pertaining to any person who transports\nsexually explicit visual depictions of a minor); id.\nat § 2251(d)(1) (concerning any person who knowingly\nseeks or offers through advertisements sexually explicit\nvisual depictions of a minor). A “minor” is defined as a\nperson under the age of 18. 18 U.S.C. § 2256(1). “Sexually\nexplicit conduct” is defined for purposes of the section as\nactual or simulated intercourse between persons; lascivious\nexhibition of the genitals, breast, or pubic area; bestiality;\nmasturbation; or sadistic or masochistic abuse. Id.\nat § 2256(2). Each enumerated § 2251 offense references\n§ 2251(e), the provision that sets forth the multiple-\nconviction enhancement, stating that the offender “shall be\n\f12 UNITED STATES V. SCHOPP\n\npunished as provided under subsection (e).” Id.\nat §§ 2251(a)–(d)(1). 18 U.S.C. § 2251(e), in turn, provides,\nas relevant:\n\n [I]f such person has 2 or more prior\n convictions under this chapter, chapter 71,\n chapter 109A, or chapter 117, or under\n section 920 of title 10 (article 120 of the\n Uniform Code of Military Justice), or under\n the laws of any State relating to the sexual\n exploitation of children, such person shall be\n fined under this title and imprisoned not less\n than 35 years nor more than life.\n\n The statute’s section heading, when read in conjunction\nwith the statutory text, largely resolves our question\nconcerning the federal generic definition of “sexual\nexploitation of children.” Congress titled § 2251 “[s]exual\nexploitation of children.” By doing so, it signaled that the\nenumerated federal offenses in § 2251 constitute the federal\nunderstanding of the term “sexual exploitation of children,”\nand that the term as subsequently used in § 2251(e) bears\nthat same meaning.\n\n It is of no import that Congress did not set forth the\nmeaning of the statute’s heading with a definitional\nprovision (i.e., “sexual exploitation of children is defined\nas”), although it did define terms used within the statute, in\n18 U.S.C. § 2256. Congress frequently uses section headings\nfor the precise purpose of conveying the reach of the offense\na statute covers.\n\n For example, the Supreme Court in Esquivel-Quintana\nv. Sessions concluded that “[s]ection 2243, which\ncriminalizes ‘[s]exual abuse of a minor or ward,’ contains\nthe only definition of that phrase in the United States Code.”\n\f UNITED STATES V. SCHOPP 13\n\n137 S. Ct. at 1570. Like § 2251, 18 U.S.C. § 2243 does not\ncontain a definitional provision. Aside from two subsection\nheadings which read “[sexual abuse] of a minor” and\n“[sexual abuse] of a ward,” the text contains no express\nreference to the term. See 18 U.S.C. §§ 2243(a)–(b). By\nconcluding that § 2243 defines “sexual abuse of a minor or\nward,” the Court indicated that a section heading may serve\nas the basis for establishing what offense is being defined in\nthe statutory text.\n\n The import of section headings for defining federal\noffenses applies with equal force here. 3 Because § 2251 is\ntitled “[s]exual exploitation of children,” the enumerated\nelements of the offenses described in the statute constitute\nthe definition of the offense bearing that name. All of the\noffenses described in § 2251 concern visual depictions of\nchildren engaging in sexually explicit conduct, with\n“sexually explicit conduct” defined in a separate statute. See\n18 U.S.C. §§ 2256(1)–(2). We accordingly hold that the\nfederal generic definition of “sexual exploitation of\nchildren” is defined within § 2251 as the production of visual\n\n 3\n Concerns typically raised when a section heading is relied upon in\nconstruing a statute are not here applicable. When section headings are\ndiscounted, it is ordinarily because they are not part of the statute as\noriginally enacted and therefore have no bearing on statutory meaning or\ncongressional intent. See, e.g., United States v. Welden, 377 U.S. 95, 98\nn.4 (1964) (“Certainly where, as here, the ‘change of arrangement’ was\nmade by a codifier without the approval of Congress, it should be given\nno weight.”); Mangum v. Action Collection Serv., Inc., 575 F.3d 935,\n939–40 (9th Cir. 2009) (“There can be little doubt that titles, in general,\nare of some help, but the mere addition of a title by the Law Revision\nCounsel cannot change the meaning or intent of a statutory provision.”).\nHere, however, § 2251, as originally enacted, contained the section\nheading “Sexual exploitation of children.” See Protection of Children\nAgainst Sexual Exploitation Act of 1977, Pub. L. No. 95-225, 92 Stat. 7\n(1978).\n\f14 UNITED STATES V. SCHOPP\n\ndepictions of children engaging in sexually explicit conduct,\nor put simply, the production of child pornography.\n\n Although the section heading is an independently\nsufficient basis for our conclusion, it is not the only\nindication that we have reached the proper definition of the\noffense. Defining the federal generic definition of “sexual\nexploitation of children” as the production of child\npornography comports with other federal statutory\ndefinitions; the U.S. Sentencing Guidelines; state criminal\ncodes; and Black’s Law Dictionary.\n\n For starters, 18 U.S.C. § 3509, which sets forth court\nprocedures for child victims, specifically defines “the term\n‘exploitation’ [as] mean[ing] child pornography or child\nprostitution.” 18 U.S.C. § 3509(a)(6). Not only does this\ndefinition generally align with our definition of the offense,\nit is illustrative of Congress’s understanding of exploitative\noffenses. In defining “exploitation” as it pertains to child\nvictims of sexual crimes by specific reference to child\npornography and child prostitution, Congress illustrated that\n“exploitation” necessarily requires some form of distinct\nenrichment or benefit deriving from the sexual conduct,\nother than sexual gratification from the conduct alone. 4\n\n Furthermore, the Sentencing Guidelines use the term\n“sexually exploiting a minor” to refer to the “production of\nsexually explicit visual or printed material” involving\nminors. See U.S.S.G. § 2G2.1. And twenty-three states\ncriminalize the “sexual exploitation of children” (or\nsimilarly titled offenses, such as “sexual exploitation of a\n\n 4\n Child prostitution is not covered under any of the federal offenses\ndescribed in § 2251. There are no child prostitution prior convictions,\nhowever, at issue here.\n\f UNITED STATES V. SCHOPP 15\n\nminor” or “unlawful exploitation of a minor”), all defining\nthe offense as the production of child pornography. See\nAlaska Stat. § 11.41.455; Ariz. Rev. Stat. § 13-3553; Cal.\nPenal Code § 311.3; Colo. Rev. Stat. § 18-6-403(3); Del.\nCode Ann. tit. 11, §1108; Ga. Code Ann. §16-12-100; Idaho\nCode Ann. § 18-1507; Ind. Code § 35-42-4-4; Kan. Stat.\nAnn. § 21-5510; Me. Stat., tit. 17-A, § 282; Miss. Code Ann.\n§ 97-5-33; Mo. Rev. Stat. § 573.023; N.M. Stat. Ann. § 30-\n6A-3; N.C. Gen. Stat. § 14-190.16; Okla. Stat. tit. 21,\n§ 843.5; 18 Pa. Cons. Stat. § 6320; S.C. Code Ann. § 16-15-\n395; S.D. Codified Laws § 22-22-24.3; Tenn. Code Ann.\n§ 39-17-1005; Utah Code Ann. § 76-5b-201; Wash. Rev.\nCode § 9.68A.040; Wis. Stat. § 948.05; Wyo. Stat. Ann. § 6-\n4-303.\n\n Finally, Black’s Law Dictionary’s definition comports\nwith our understanding of the term’s usage in § 2251. It\ndefines “sexual exploitation” as “the use of a person, esp. a\nchild, in prostitution, pornography, or other sexually\nmanipulative activity.” Black’s Law Dictionary (11th ed.\n2019). Like the definition contained in 18 U.S.C. § 3509,\nBlack’s definition recognizes that “sexual exploitation”\nincludes some form of enrichment of or benefit to the\nperpetrator beyond sexual gratification, as evidenced by its\nreference to the same sexually exploitative crimes, child\npornography and child prostitution, covered in § 3509.\n\n In short, all roads lead to the same conclusion: “sexual\nexploitation of children” as contained in § 2551(e) means the\nproduction of child pornography. 5\n\n\n 5\n Our definition of “sexual exploitation of children” as contained in\n§ 2251(e) conflicts with definitions adopted by two other federal\nappellate courts. See United States v. Mills, 850 F.3d 693, 697 (4th Cir.\n\f16 UNITED STATES V. SCHOPP\n\n B\n\n Having defined the generic federal offense, the Taylor\ncategorical approach dictates that we next compare the\nfederal generic offense to the state statutes of conviction. See\nMathis, 136 S. Ct. at 2248.\n\n Schopp’s prior Alaska convictions consist of various\ndegrees of sexual assault and sexual abuse of minors. An\noffender commits the offenses for which Schopp was\nconvicted previously if he or she satisfies the element of\neither engaging or attempting to engage in sexual penetration\nor sexual contact with a minor, or encouraging a minor to\nengage in sexual contact with another person. See Alaska\nStat. § 11.41.410 (1983 Supp.); Alaska Stat. §§ 11.41.438,\n11.41.436, 11.41.434 (1993). The federal generic definition\nof “sexual exploitation of children,” on the other hand,\ncriminalizes the production of visual depictions of children\n\n\n2017) (defining the term as “tak[ing] advantage of children for selfish\nand sexual purposes”); United States v. Smith, 367 F.3d 748, 751 (8th\nCir. 2004) (defining “the term [as] unambiguously refer[ring] to any\ncriminal sexual conduct with a child”); see also United States v. Pavulak,\n700 F.3d 651, 673–74 (3d Cir. 2012) (concluding that the relevant prior\nstate convictions “relat[e] to the sexual exploitation of children” but not\ndefining the substantive term); United States v. Randolph, 364 F.3d 118,\n122 (3d Cir. 2004) (same). But the analysis in those decisions is\nfundamentally flawed. Our sister courts failed to employ ordinary\nprinciples of statutory interpretation: they did not read the section\nheading in conjunction with the text of the statute; and they did not\nconsider other uses of the term in federal statutes, state criminal codes,\nand the Guidelines. Moreover, their definitions obliterate the careful\nlines Congress has drawn demarcating “sexual abuse” from “sexual\nexploitation” by failing to grapple with the “exploitation” component of\nthe federal offense and focusing exclusively on the “sexual abuse”\naspect.\n\f UNITED STATES V. SCHOPP 17\n\nengaging in sexually explicit conduct, requiring in addition\nto the underlying child sexual abuse, the creation of sexually\nexplicit depictions. 6 Looking at their diverse elements, it is\napparent that the state and federal statutes make criminal\ndifferent conduct. The state statutes of convictions\nconcerning sexual assault and sexual abuse are thus not a\ncategorical match to the federal definition of “sexual\nexploitation of children.” 7\n\n Accordingly, we hold that Schopp’s prior Alaska\nconvictions are not a categorical match to the generic federal\noffense of “sexual exploitation of children” and cannot serve\n\n\n 6\n Alaska Statutes § 11.41.436 incorporates the conduct aspects but\nnot the visual depiction elements of a separate Alaska statute,\n§ 11.41.455. Section 11.41.436 provides that “an offender commits the\ncrime of sexual abuse of a minor in the second degree if . . . being\n16 years of age or older, the offender aids, induces, causes, or encourages\na person who is under 16 years of age to engage in conduct described in\nAS 11.41.455(a)(2)–(6).” Alaska Stat. § 11.41.436(a)(4) (1990)\n(emphasis added). In turn, Alaska Statutes § 11.41.455, which sets forth\nthe offense of “unlawful exploitation of a minor,” lists in the subsections\nincorporated in § 11.41.436 the “conduct” covered under the statute.\nThat “conduct” includes: “(1) sexual penetration; (2) the lewd touching\nof another person’s genitals, anus, or breast; (3) the lewd touching by\nanother person of the child’s genitals, anus, or breast; (4) masturbation;\n(5) bestiality; (6) the lewd exhibition of the child’s genitals; or (7) sexual\nmasochism or sadism.” Alaska Stat. § 11.41.455(a)(1)–(7) (1990).\nReading the statute in context, it is clear that Alaska Statutes\n§ 11.41.436, Schopp’s statute of conviction for Sexual Abuse of a Minor\nII, captures the “actual . . . conduct” listed in § 11.41.455(a)(2)–(6), but\ndoes not incorporate the visual depiction aspect of that offense.\n\n 7\n We need not determine whether the state statutes are divisible or\nindivisible. The government does not argue that the modified categorical\napproach applies or contend that the state statutes of conviction are\ndivisible for purposes of that approach. See Descamps, 570 U.S. at 261–\n62.\n\f18 UNITED STATES V. SCHOPP\n\nas predicate offenses for purposes of the multiple-conviction\nenhancement under § 2251(e).\n\n C\n\n Aside from arguing that “sexual exploitation of children”\nis not defined in § 2251—the argument we have rejected—\nthe government offers two additional contentions\nconcerning the meaning of “sexual exploitation of children”\nin § 2251(e).\n\n First, espousing the reasoning in Mills, 850 F.3d at 693,\nthe government contends that because the single-and-\nmultiple-conviction enhancements in § 2251(e) once\ncontained the same predicate offenses, Congress’s 2006\namendment to the enhancement provision reflects a drafting\nerror. The government is suggesting that Congress meant to\nreplace “relating to sexual exploitation of children” in both\nthe single- and multiple-conviction enhancements with\n“relating to aggravated sexual abuse, sexual abuse, abusive\nsexual contact involving a minor or ward,” see 18 U.S.C.\n§ 2251(e), but then did so only for the single-conviction\nenhancement.\n\n We “ha[ve] no free-floating power to rescue Congress\nfrom its drafting errors.” King v. Burwell, 135 S. Ct. 2480,\n2504 (2015) (citation and internal quotation marks omitted).\n“Only when it is patently obvious to a reasonable reader that\na drafting mistake has occurred may a court correct the\nmistake.” Id. at 2504–05. The rare drafting errors that are\ncorrected are “apparent from the face of the law,” such as the\ndrafting error in “the Affordable Care Act [which] creates\nthree separate Section 1563s.” Id. at 2505; see also Lamie v.\nU.S. Tr., 540 U.S. 526, 542 (2004) (concluding that a\ngrammatical error in an amended provision in the\n\f UNITED STATES V. SCHOPP 19\n\nBankruptcy Code was not ambiguous and declining to\ncorrect Congress’s drafting error).\n\n Here, it is far from apparent that there was a drafting\nerror. Congress quite reasonably could have included a\nnarrower set of offenses for the multiple-conviction\nenhancement, which carries the hefty maximum penalty of\nlife imprisonment, than for the single-conviction\nenhancement. Furthermore, the prosecution can obtain a\nsubstantial term of imprisonment—between twenty-five and\nfifty years—using the single-conviction enhancement statute\nto capture the various “sexual abuse” state offenses not\ncaptured under “sexual exploitation of children.” 8\n\n Second, the government contends that Congress\nintended parallelism between the enumerated federal crimes\nand the qualifying state offenses in the multiple-conviction\nenhancement. See 18 U.S.C. §§ 1460–1470 (concerning\nfederal obscenity offenses); 18 U.S.C. §§ 2241–2248\n(concerning federal sexual abuse offenses); 18 U.S.C.\n§§ 2421–2429 (concerning federal sex trafficking offenses);\n10 U.S.C. § 920 (concerning federal sexual assault under the\nUniform Code of Military Justice). The government regards\nit as “nonsensical” for Congress to enumerate a broad\ncategory of qualifying federal offenses, including the various\nsexual abuse crimes, while limiting qualifying state offenses\nto the production of child pornography.\n\n That argument falls of its own weight. The enumerated\nfederal offenses are not limited to crimes involving children.\n\n 8\n Notably, the parties here did not address in the district court the\ndistinctions between the two enhancements, see supra, at 7, presumably\nbecause they agreed on the imposition of a thirty-five-year sentence,\nwhich would have been permissible under both enhancements.\n\f20 UNITED STATES V. SCHOPP\n\nSee, e.g., 18 U.S.C. §§ 1460–1466, 1468 (concerning\nobscenity offenses not specifically involving children);\n18 U.S.C. § 2242 (concerning sexual abuse not specifically\ninvolving children); 18 U.S.C. §§ 2421–2421A, 2424\n(concerning sex trafficking offenses not specifically\ninvolving children); 10 U.S.C. § 920 (concerning sexual\nassault under the Uniform Code of Military Justice not\nspecifically involving children). Whatever else may be true\nof the term “sexual exploitation of children,” the offenses\ncovered by it quite evidently must involve children.\n\n Moreover, this disconnect between the qualifying prior\nfederal convictions and qualifying prior state convictions for\nsentence enhancements under § 2251(e) is not limited to the\nmultiple-conviction enhancement. The single-conviction\nenhancement exhibits the same lack of parallelism: Like the\nmultiple-conviction enhancement, the single-conviction\nenhancement contains federal offenses not limited to crimes\ninvolving children, yet limits the qualifying prior state\nconvictions to offenses that exclusively concern children\n(e.g., the various sexual abuse offenses perpetuated against\nchildren, sex trafficking of children, and possession of child\npornography). See 18 U.S.C. § 2251(e). So no possible\ninterpretation of § 2251(e) produces the parallelism between\nthe enumerated federal offenses and the state offenses the\ngovernment posits. We cannot say why Congress meant to\npermit sentencing enhancement for a much broader swath of\nfederal offenses than of state crimes. But there is no\ndisputing that it did. The enumerated federal crimes are\ntherefore entirely uninformative as to the meaning of the\nterm “sexual exploitation of children” as it pertains to the\nqualifying prior state offenses.\n\f UNITED STATES V. SCHOPP 21\n\n D\n\n The government makes one final argument as to the\nscope of the § 2251(e) multiple-conviction enhancement—\nthat the term “relating to,” which appears before “sexual\nexploitation of children,” extends the reach of the\nenhancement to a broader range of state criminal offenses\ninvolving sexual abuse of children but lacking any visual\ndepiction component. We cannot agree.\n\n Section 2251(e) does, of course, contain the phrase\n“relating to sexual exploitation of children.” (emphasis\nadded). And Supreme Court and Ninth Circuit cases have\nconcluded that the phrase “relating to,” under certain\ncircumstances, warrants a broader comparison of state\noffenses to the federal generic crime at issue than would\notherwise be the case. See Mellouli v. Lynch, 135 S. Ct.\n1980, 1990 (2015); United States v. Reinhart, 893 F.3d 606,\n610 (9th Cir. 2018). To determine the reach of the “relating\nto” modifier here, we begin by examining each relevant\ndecision concerning the term “relating to,” beginning with\nour decision in United States v. Sinerius, 504 F.3d 737 (9th\nCir. 2007).\n\n 1\n\n This court considered in Sinerius whether the\ndefendant’s prior Montana conviction for sexual assault\nunder Montana Code Annotated § 45-5-502 was a predicate\noffense for a sentencing enhancement under 18 U.S.C.\n§§ 2252A(b)(1)–(2). Sections 2252(A)(b)(1)–(2) set forth a\nmandatory minimum sentence for the possession of child\npornography if a defendant has “a prior conviction . . . under\nthe laws of any State relating to aggravated sexual abuse,\nsexual abuse, or abusive sexual conduct involving a minor\nor ward.” 504 F.3d at 740. Sinerius defining “sexual abuse”\n\f22 UNITED STATES V. SCHOPP\n\naccording to the “ordinary, contemporary, and common\nmeaning of the statutory words,” gave “sexual” its ordinary\nmeaning and defined “abuse” as meaning to “misuse . . . to\nuse or treat so as to injure, hurt, or damage . . . to commit\nindecent assault on.” Id. (quoting United States v. Lopez-\nSolis, 447 F.3d 1201, 1206–07 (9th Cir. 2006)).\n\n Sinerius rejected the defendant’s argument that the\nfederal offense of “sexual abuse” as delineated in 18 U.S.C.\n§ 2242 defines “sexual abuse” as used in § 2252A. Id.\nat 742–43. 9 It concluded that § 2242’s use of the term was\n\n\n 9\n Section 2242, which is titled “[s]exual abuse” but like § 2251 does\nnot include an express definition of the phrase used as the title, provides\nin full:\n\n Whoever, in the special maritime and territorial\n jurisdiction of the United States or in a Federal prison,\n or in any prison, institution, or facility in which\n persons are held in custody by direction of or pursuant\n to a contract or agreement with the head of any Federal\n department or agency, knowingly–\n\n (1) causes another person to engage in a sexual act by\n threatening or placing that other person in fear (other\n than by threatening or placing that other person in fear\n that any person will be subjected to death, serious\n bodily injury, or kidnapping); or\n\n (2) engages in a sexual act with another person if that\n other person is–\n\n (A) incapable of appraising the nature of the conduct;\n or\n\n (B) physically incapable of declining participation in,\n or communicating unwillingness to engage in, that\n sexual act; or attempts to do so, shall be fined under\n\f UNITED STATES V. SCHOPP 23\n\ninapplicable because it is located in an entirely different\nchapter. Id. The court then held that the prior Montana\nconviction at the very least “relat[ed] to . . . sexual abuse,”\nas the least egregious conduct under the Montana statute—\n“consensual” sexual contact by a sixteen-year-old toward a\nthirteen-year-old—categorically matched the generic federal\ndefinition of “sexual abuse.” Id. at 741.\n\n Years later, the Supreme Court in Mellouli v. Lynch,\n135 S. Ct. at 1980, provided significant guidance as to the\nreach of the phrase “relating to” in the categorical inquiry\ncontext. Mellouli considered whether a Kansas misdemeanor\nconviction for possessing drug paraphernalia triggered\n8 U.S.C. § 1227, the federal immigration removal statute.\n135 S. Ct. at 1984. Section 1227 applies to noncitizens\n“convicted of a violation of . . . any law or regulation of a\nState, the United States, or a foreign country relating to a\ncontrolled substance (as defined in section 802 of Title 21).”\n8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added). The\ngovernment, relying on the federal removal statute’s\n“relating to” language, argued that a substantial overlap in\nthe state and federal drug schedules permits “any drug\ncrime” to trigger the federal removal statute, regardless of\nwhether the state paraphernalia offense was limited to a\nfederally controlled substance. Id. at 1989–91.\n\n Acknowledging that the “relating to” term broadened the\neffect of the statutory provision to a degree, Mellouli\nconcluded that the phrase nonetheless has significant limits,\nid. at 1990–91, as “[c]ontext . . . may tug . . . in favor of a\nnarrower reading.” Id. at 1990 (internal quotation marks,\ncitation, and alterations omitted). Upon reviewing § 1227’s\n\n this title and imprisoned for any term of years or for\n life.\n\f24 UNITED STATES V. SCHOPP\n\ncontext, specifically its text and history, the Court concluded\nthat Congress and the Board of Immigration Appeals\n“required a direct link between [a noncitizen’s] crime of\nconviction and a particular federally controlled drug.” Id.\nThe “relating to” phrase, that is, does not permit an\nexpansion beyond the substantive linchpin element of the\nfederal generic crime—there, federally controlled\nsubstances—although it does permit inclusion of various\nkinds of conduct involving that generic crime. Id. The Court\ntherefore held that the statute’s parenthetical reference to\n21 U.S.C. § 802 narrowed its application to convictions\nstemming from federally controlled substances specifically\ndefined in § 802. Id. at 1990. Because the Kansas\nparaphernalia statute made criminal the act of using drug\nparaphernalia to store or conceal any controlled substances,\nnot just those defined in § 802, the defendant’s prior state\nconviction did not trigger the federal removal statute. Id.\nat 1984, 1991.\n\n We applied Mellouli’s interpretation of “relating to” in\nUnited States v. Sullivan, 797 F.3d at 635. Sullivan\nconsidered whether the defendant’s prior California\nconvictions for unlawful sexual intercourse and oral\ncopulation with a minor triggered federal sentencing\nenhancements under the single prior conviction aspect of\n18 U.S.C. §§ 2251(e) and 2252(b)(2). Id. at 635. Both\n§§ 2251(e) and 2252(b)(2) enhancements apply when a\ndefendant has a “prior conviction . . . under the laws of any\nState relating to aggravated sexual abuse, sexual abuse, or\nabusive sexual contact involving a minor or ward,” but the\nmandatory minimums differ. 10 Like Sinerius, Sullivan\n\n\n 10\n Section 2252(b)(2) reads, in pertinent part:\n\f UNITED STATES V. SCHOPP 25\n\ndefined “sexual” according to its ordinary meaning and\n“abuse” as meaning to “misuse . . . to use or treat so as to\ninjure, hurt, or damage . . . to commit indecent assault on.”\nId. at 636. (quoting Sinerius, 504 F.3d at 740). In comparing\nthe federal and state statutes, the court concluded that the\nprior state convictions were not a categorical match to the\nfederal generic definition because they did not contain a\nmens rea requirement. Id. at 637. Sullivan concluded,\nhowever, that the prior state convictions were still predicate\noffenses because they “relat[e] to . . . sexual abuse.” Id. at\n641. In so concluding, Sullivan reasoned that, unlike the\nfederal removal statute in Mellouli, the text and history of\nthe two federal enhancement statutes at issue neither\nrequired a “direct link” between the federal and state statutes\nof conviction nor contained a limiting parenthetical\nnarrowing the effect of the “relating to” language. Id. at 640.\n\n The most recent decision from this court regarding the\nphrase “relating to” in the categorical approach context,\nUnited States v. Reinhart, 893 F.3d at 606, considered\nwhether the defendant’s prior California convictions for\npossession of child pornography and sexual exploitation of\na child were convictions “relating to child pornography”\nunder § 2252(b)(2), one of the sentencing enhancement\n\n\n Whoever violates, or attempts or conspires to violate,\n paragraph (4) of subsection (a) shall be fined under\n this title or imprisoned not more than 10 years, or both,\n . . . if such person has a prior conviction under . . . the\n laws of any State relating to aggravated sexual abuse,\n sexual abuse, or abusive sexual conduct involving a\n minor or ward, or the production, possession, receipt,\n mailing, sale, distribution, shipment, or transportation\n of child pornography, such person shall be fined under\n this title and imprisoned for not less than 10 years nor\n more than 20 years.\n\f26 UNITED STATES V. SCHOPP\n\nprovisions reviewed in Sullivan. 893 F.3d at 608. Unlike\nthe federal offenses at issue in Sinerius and Sullivan, the\ngeneric federal offense Reinhart considered—“child\npornography”—and the related term “sexually explicit\nconduct” are defined within the same chapter as the federal\nenhancement. Id. at 613. Reinhart concluded that when there\nare federal definitions of the relevant terms within the same\nchapter as the federal statute, the court must apply those\ndefinitions to enhancement provisions as well as to others.\nId. at 615. It likewise concluded that the presence of such\ndefinitions serves as requisite context “tug[ging] . . . in favor\nof a narrower reading” of “relating to.” Id. at 615 (citing\nMellouli, 135 S. Ct. at 1990). Reinhart expressly did not,\nhowever, read the “relating to” language out of existence;\nthe court instead “anchored [it] to the federal definition of\nchild pornography.” Id. at 616.\n\n Applying the traditional elements-based categorical\napproach, Reinhart held that the defendant’s prior state\nconvictions in that case were not a categorical match to the\ngeneric federal definition of “child pornography.” Id. at 621.\nBoth statutes, California Penal Code § 311.11(a) and\nCalifornia Penal Code § 311.3(a), defined “sexual conduct”\nmore broadly than the federal definitions of “child\npornography” and “sexually explicit conduct.” Id. at 617–\n19. Because both statutes were indivisible, the modified\ncategorical approach did not apply. Reinhart therefore held\nthat neither California statute triggered an enhancement\nunder § 2252(b)(2). Id. at 620–21.\n\n 2\n\n Using these cases as guidance, we address how the\nphrase “relating to” in § 2251(e) applies here. Under\nMellouli and Reinhart, a statute’s context, particularly its\ntext and history, determine the reach of the phrase. See\n\f UNITED STATES V. SCHOPP 27\n\nMellouli, 135 S. Ct. at 1990; Reinhart, 893 F.3d at 614. The\nlanguage of § 2251(e) tugs in favor of reading “relating to”\nas reaching various kinds of conduct involving the central\nsubstantive concept, “sexual exploitation of children,” but\nnot activity that does not include the key visual depiction\naspect of that term.\n\n For starters, the term “sexual exploitation of children”\nheads all offenses included in § 2251, anchoring the\nmeaning of the “relating to” language to the definition of the\ngeneric federal offense as the production of child\npornography. Reinhart, 893 F.3d at 614. Section 2251’s\nsubsections then establish that various sorts of conduct\n“relating to the sexual exploitation of children” are\nproscribed: Subsection (b) relates to parents and custodians,\nwho sexually exploit their children; subsection (c)(1) relates\nto persons who transport child pornography through\ninterstate or foreign commerce; and subsection (d)(1) relates\nto persons who publish any notice or advertisement that\nseeks or offers to distribute or receive child pornography.\nAccordingly, a state conviction “relat[es] to the sexual\nexploitation of children” if it captures the conduct in those\nsubsections, which all contain an element of exploitation that\nextends beyond unlawful sexual conduct with a minor. 11\n\n Schopp’s various prior state convictions for the sexual\nabuse and sexual assault of minors do not contain the\nrequisite element of “exploitation,” as no visual depiction of\nsexually explicit conduct is required. His prior convictions\n\n\n\n 11\n It may be that state offenses that have different conduct elements\nfrom those covered in § 2251 but that also pertain to child pornography\nare covered as well. As the issue is not raised, we do not decide it.\n\f28 UNITED STATES V. SCHOPP\n\nfor sexual abuse thus do not “relat[e] to the sexual\nexploitation of children” within the meaning of § 2251.\n\n Despite the statutory evidence to the contrary, the\ngovernment contends that “relating to sexual exploitation of\nchildren” includes all “sexual abuse” crimes involving\nminors, observing that the production of child pornography\ndepicts such sexual abuse. In other words, although the\nproduction of child pornography statute contains other\nelements as well, the sexual abuse of a child is a necessary\ncomponent of the offense.\n\n But the statutory materials leave no doubt that Congress\nconsiders “sexual exploitation” and “sexual abuse” to be\ndistinct categories of offenses; “sexual exploitation,” if\nanything, is a subset of “sexual abuse.” For example,\nChapter 110 of Title 18, which includes § 2251, is titled\n“Sexual Exploitation and Other Abuse of Children,”\nconfirming that not all “[s]exual . . . abuse of children” is\n“sexual exploitation of children.” Rather, “sexual\nexploitation,” limited to the production of child\npornography, covers a narrower set of conduct than other\nsexual abuse of children offenses.\n\n Mellouli and Reinhart do not permit the government’s\nattempt at so broadening the scope of the statute through the\n“relating to” clause, as to obliterate the careful distinction\ndrawn in the statute between “sexual exploitation of\nchildren” and other forms of child sexual abuse. Expanding\nthe statutorily delineated generic offenses through the phrase\n“relating to” to include categories of federal offenses that\ncould have been included in the multiple-conviction\nenhancement provision but were not impermissibly throws\noverboard the overall statutory scheme.\n\f UNITED STATES V. SCHOPP 29\n\n We note, in particular, that the single-conviction\nenhancement in § 2251(e) delineates in haec verba the very\nsorts of state child sexual abuse offenses the government\nmaintains are secretly buried in the “relating to” phrase that\nprecedes “sexual exploitation of children” in the same\nsubsection. Why Congress would have expressly added the\nchild sex abuse crimes to the single-conviction enhancement\nif they were already there in the earlier version of that\nenhancement, see supra, 19–20, we are not told. Nor are we\ntold why the single and multiple conviction enhancements in\nthe same subsection read so differently if they mean the same\nthing.\n\n We therefore adhere to our conclusion that the “relating\nto” term in § 2251(e) encompasses state offenses that are a\ncategorical match to the federal offense of production of\nchild pornography and state offenses involving the\nproduction of such pornography, that is, the conduct\nenumerated in § 2251’s various subsections. It does not\ninclude offenses that entirely lack the visual depictions\nelement that separates “sexual exploitation of children” from\nother forms of child abuse in the federal criminal offense\npanoply.\n\n Because Schopp’s prior Alaska convictions concerning\nthe sexual abuse and sexual assault of minors do not require\na visual depiction element, they do not “relat[e] to the sexual\nexploitation of children” and cannot serve as predicate\noffenses for purposes of the multiple-conviction\nenhancement in § 2251(e). The district court therefore erred\nin applying the enhancement and so in sentencing Schopp to\nlife imprisonment.\n\f30 UNITED STATES V. SCHOPP\n\n E\n\n Because Schopp failed to object to the application of the\nmultiple-conviction enhancement below, we review for\nplain error. See United States v. Olano, 507 U.S. 725, 731–\n32 (1993). “Plain error is (1) error, (2) that is plain, and\n(3) that affects substantial rights . . . [and] (4) seriously\naffects the fairness, integrity, or public reputation of judicial\nproceedings.” United States v. Ameline, 409 F.3d 1073, 1078\n(9th Cir. 2005) (en banc) (internal citation and alterations\nomitted).\n\n The district court’s imposition of the wrong sentencing\nenhancement was both error and plain; it affected Schopp’s\nsubstantial rights because it led to a sentence exceeding the\nstatutory maximum; and “seriously affect[ed] the fairness,\nintegrity or public reputation of judicial proceedings”\nbecause “it is a miscarriage of justice to give a person an\nillegal sentence.” Id. at 1081. We therefore hold that the\ndistrict court committed plain error by applying § 2251(e)’s\nmultiple-conviction enhancement.\n\n IV\n\n In sum, “sexual exploitation of children” as contained in\n18 U.S.C. § 2251 is defined within that statute as the\nproduction of child pornography. Schopp’s prior Alaska\nconvictions for sexual abuse and sexual assault with minors\ndo not “relat[e] to the sexual exploitation of children” and so\ncannot serve as predicate offenses under § 2251(e).\nAccordingly, we REVERSE Schopp’s sentence and\nREMAND for resentencing.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Thomas Schopp\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-16\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nUNITED STATES OF AMERICA, No. 16-30185\\n Plaintiff-Appellee,\\n D.C. No.\\n v. 1:15-cr-00001-\\n TMB-1\\nTHOMAS SCHOPP, AKA Thomas\\nHiser,\\n Defendant-Appellant. OPINION\\n\\n Appeal from the United States District Court\\n for the District of Alaska\\n Timothy M. Burgess, Chief District Judge, Presiding\\n\\n Argued and Submitted June 10, 2019\\n Anchorage, Alaska\\n\\n Filed September 16, 2019\\n\\n Before: A. Wallace Tashima, William A. Fletcher,\\n and Marsha S. Berzon, Circuit Judges.\\n\\n Opinion by Judge Berzon\\n\\f2 UNITED STATES V. SCHOPP\\n\\n SUMMARY *\\n\\n\\n Criminal Law\\n\\n The panel vacated a life sentence imposed following the\\ndefendant’s guilty plea to producing child pornography in\\nviolation of 18 U.S.C. § 2251(a), and remanded for\\nresentencing, in a case in which the district court, applying\\nthe multiple-conviction enhancement contained in 18 U.S.C.\\n§ 2251(e), concluded that the defendant’s prior Alaska\\nconvictions “relat[e] to the sexual exploitation of children.”\\n\\n The panel held that the appeal is permitted despite the\\ndefendant’s appeal waiver because the appeal goes to the\\nlegality of the sentence in that the defendant argues that the\\nimposed life sentence was in excess of the maximum\\nstatutory penalty.\\n\\n Applying the categorical approach, the panel held that\\nthe federal generic definition of “sexual exploitation of\\nchildren” is defined within § 2251 as the production of visual\\ndepictions of children engaging in sexually explicit conduct.\\nThe panel explained that the “relating to” term in § 2251(e)\\nencompasses state offenses that are a categorical match to\\nthe federal offense of production of child pornography and\\nstate offenses involving the production of child pornography\\n(that is, the conduct enumerated in § 2251’s various\\nsubsections), and does not include offenses that entirely lack\\nthe visual depictions element that separates “sexual\\n\\n\\n\\n *\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f UNITED STATES V. SCHOPP 3\\n\\nexploitation of children” from other forms of child abuse in\\nthe federal criminal offense panoply.\\n\\n The panel held that because the defendant’s prior Alaska\\nconvictions concerning the sexual abuse and sexual assault\\nof minors do not require a visual depiction element, they do\\nnot “relat[e] to the sexual exploitation of children” and\\ncannot serve as predicate offenses for purposes of the\\nmultiple-conviction enhancement in § 2251(e). The panel\\nconcluded that the district court therefore erred in applying\\nthe enhancement and sentencing the defendant to life\\nimprisonment.\\n\\n The panel held that the district court’s imposition of the\\nwrong sentencing enhancement was plain error that affected\\nthe defendant’s substantial rights.\\n\\n\\n COUNSEL\\n\\nMyra Sun (argued), Los Angeles, California, for Defendant-\\nAppellant.\\n\\nAllison Meredith O’Leary (argued) and Kyle Reardon,\\nAssistant United States Attorneys; Bryan Schroder, United\\nStates Attorney; Office of the United States Attorney,\\nAnchorage, Alaska; for Plaintiff-Appellee.\\n\\f4 UNITED STATES V. SCHOPP\\n\\n OPINION\\n\\nBERZON, Circuit Judge:\\n\\n Thomas Schopp pleaded guilty to producing child\\npornography in violation of 18 U.S.C. § 2251(a). Section\\n2251 is headed “[s]exual exploitation of children” and\\ndescribes several substantive offenses. The statute’s penalty\\nprovision provides, among other things, that a defendant\\nwith “2 or more prior convictions . . . under the laws of any\\nState relating to the sexual exploitation of children . . . shall\\nbe . . . imprisoned not less than 35 years nor more than life.”\\n18 U.S.C. § 2251(e) (emphasis added). Our question is\\nwhether the meaning of the term “relating to the sexual\\nexploitation of children” in § 2251’s enhancement provision\\nshould reflect the elements of the substantive crimes\\ndescribed in the same “[s]exual exploitation of children”\\nstatute.\\n\\n Schopp has several prior Alaska convictions relating to\\nthe sexual assault and sexual abuse of minors, none\\ninvolving the production of child pornography. See Alaska\\nStat. § 11.41.410 (1983 Supp.); Alaska Stat. §§ 11.41.438,\\n11.41.436, 11.41.434 (1993). The district court concluded\\nthat Schopp’s prior Alaska convictions “relat[e] to the sexual\\nexploitation of children.” Applying the multiple-conviction\\nenhancement contained in § 2251(e), the district court\\nsentenced Schopp to life imprisonment, the maximum\\nsentence permitted under that enhancement. We hold that\\nSchopp’s prior Alaska convictions are not offenses “relating\\nto the sexual exploitation of children” under § 2251(e), so\\nthe district court improperly applied the sentencing\\nenhancement.\\n\\f UNITED STATES V. SCHOPP 5\\n\\n I\\n\\n In August 2014, Schopp met a fifteen-year-old boy at the\\ngrocery store at which they both worked in Juneau, Alaska.\\nMonths later, Schopp invited the boy to his apartment and\\neither recorded or photographed himself engaging in sexual\\nacts with the minor on his cellphone camera. Schopp was\\ncharged with one count of production of child pornography,\\nin violation of 18 U.S.C. § 2251(a).\\n\\n Schopp initially pleaded not guilty but later sought to\\nchange his plea. At the change of plea hearing, the\\ngovernment established that Schopp had a number of prior\\nstate convictions for sexual assault and sexual abuse of\\nminors—specifically, convictions for: (1) six counts of\\nsexual assault in the first degree in violation of Alaska\\nStatutes § 11.41.410(a)(3), from 1988; and (2) two counts of\\nsexual abuse of a minor I in violation of Alaska Statutes\\n§ 11.41.434(a)(1), three counts of sexual abuse of minor II\\nin violation of Alaska Statutes § 11.41.436(a)(2), and one\\ncount of attempted sexual abuse of a minor III in violation\\nof Alaska Statutes § 11.41.438(a)(1), from 1993.\\n\\n 18 U.S.C. § 2251(e) provides in full:\\n\\n Any individual who violates, or attempts or\\n conspires to violate, this section shall be\\n fined under this title and imprisoned not less\\n than 15 years nor more than 30 years, but if\\n such person has one prior conviction under\\n this chapter, section 1591, chapter 71, chapter\\n 109A, or chapter 117, or under section 920 of\\n title 10 (article 120 of the Uniform Code of\\n Military Justice), or under the laws of any\\n State relating to aggravated sexual abuse,\\n sexual abuse, abusive sexual contact\\n\\f6 UNITED STATES V. SCHOPP\\n\\n involving a minor or ward, or sex trafficking\\n of children, or the production, possession,\\n receipt, mailing, sale, distribution, shipment,\\n or transportation of child pornography, such\\n person shall be fined under this title and\\n imprisoned for not less than 25 years nor\\n more than 50 years, but if such person has 2\\n or more prior convictions under this chapter,\\n chapter 71, chapter 109A, or chapter 117, or\\n under section 920 of title 10 (article 120 of\\n the Uniform Code of Military Justice), or\\n under the laws of any State relating to the\\n sexual exploitation of children, such person\\n shall be fined under this title and imprisoned\\n not less than 35 years nor more than life. Any\\n organization that violates, or attempts or\\n conspires to violate, this section shall be\\n fined under this title. Whoever, in the course\\n of an offense under this section, engages in\\n conduct that results in the death of a person,\\n shall be punished by death or imprisoned for\\n not less than 30 years or for life.\\n\\n(emphasis added). Taking the convictions recited by the\\ngovernment into account and applying § 2251(e)’s multiple-\\nconviction enhancement (without specific reference to it),\\nthe district court informed Schopp that he faced a mandatory\\nminimum of thirty-five years and a maximum sentence of\\nlife imprisonment. At the end of the hearing, however, the\\ndistrict court decided not to accept Schopp’s change of plea,\\nbecause Schopp had equivocated several times as to whether\\nhe wished to plead guilty.\\n\\n A month later, Schopp changed his mind again and\\npleaded guilty, this time pursuant to a written plea\\n\\f UNITED STATES V. SCHOPP 7\\n\\nagreement. In the agreement, Schopp waived his right to\\nappeal on most grounds, reserving the right to appeal only\\nclaims alleging ineffective assistance of counsel and\\ninvoluntariness of the guilty plea. He also stipulated to being\\n“previously convicted on two prior occasions of violations\\nof the laws of the State of Alaska relating to aggravated\\nsexual abuse, sexual abuse, or abusive sexual conduct\\ninvolving a minor,” using the language of the single-\\nconviction portion of § 2251(e). (emphasis added). Despite\\nthat stipulation, it is clear from the plea agreement’s repeated\\nreference to two or more prior state convictions, as well as\\nfrom the stipulated penalty range of thirty-five years to life,\\nthat the agreement contemplated applying the multiple-\\nconviction, not the single-conviction, enhancement.\\n\\n At the subsequent change of plea hearing, the district\\ncourt, using the single-conviction enhancement language\\nfrom the plea agreement, asked Schopp whether he had\\nstipulated to being “convicted on two prior occasions of\\nviolations of Alaska law relating to aggravated sexual abuse,\\nsexual abuse, or abusive sexual conduct involving a minor.”\\nSchopp confirmed that he had. The district court again\\ninformed Schopp that he was subject to a penalty range of\\nthirty-five years to life imprisonment, the sentencing range\\nfor the multiple-conviction enhancement. This time, the\\ndistrict court accepted Schopp’s plea.\\n\\n At sentencing, both parties sought a thirty-five-year term\\nof imprisonment (which would have been available under\\n§ 2251(e)’s single-conviction enhancement). The district\\ncourt rejected the joint recommendation. It concluded that\\nseveral sentencing factors, particularly the seriousness of the\\noffense and the sentencing goals of deterrence and protecting\\nthe public, warranted a harsher sentence. The district court\\n\\f8 UNITED STATES V. SCHOPP\\n\\nsentenced Schopp to life imprisonment. This appeal\\nfollowed.\\n\\n Schopp argues on appeal that his prior Alaska\\nconvictions do not “relat[e] to the sexual exploitation of\\nchildren,” so the district court erred by applying § 2251(e)’s\\nmultiple-conviction enhancement. That issue triggers de\\nnovo review. See United States v. Sullivan, 797 F.3d 623,\\n635 (9th Cir. 2015).\\n\\n II\\n\\n Before reaching the enhancement issue, we address\\nwhether, given the appeal waiver, Schopp may pursue this\\nchallenge to his life sentence. We have long “recognized that\\nthe waiver of a right to appeal may be subject to certain\\nexceptions such as claims involving . . . an illegal sentence\\nimposed in excess of a maximum statutory penalty.” United\\nStates v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996).\\n\\n Had the multiple-conviction enhancement not been\\napplied, Schopp’s mandatory penalty range would have been\\ntwenty-five to fifty years, the range applicable to persons\\nwith a single prior conviction “relating to aggravated sexual\\nabuse, sexual abuse, [or] abusive sexual contact involving a\\nminor or ward.” See 18 U.S.C. § 2251(e). 1 If, as Schopp\\nargues, the district court erroneously applied § 2251(e)’s\\nmultiple-conviction enhancement, the imposed life sentence\\n\\n 1\\n Schopp concedes that his prior state convictions “relat[e] to\\naggravated sexual abuse, sexual abuse, [or] abusive sexual contact\\ninvolving a minor or ward.” See 18 U.S.C. § 2251(e). There is support in\\nthe record for that conclusion. Schopp stipulated in his plea agreement\\nto being “previously convicted on two prior occasions of violations of\\nthe laws of the State of Alaska relating to aggravated sexual abuse,\\nsexual abuse, or abusive sexual conduct involving a minor.”\\n\\f UNITED STATES V. SCHOPP 9\\n\\nwas “in excess of [the] maximum statutory penalty.”\\nBaramdyka, 95 F.3d at 843. Because Schopp’s appeal goes\\nto the legality of his sentence, it is permitted despite his\\nappeal waiver.\\n\\n III\\n\\n We turn to whether Schopp’s prior state convictions are\\npredicate offenses for the multiple-conviction enhancement\\nunder § 2251(e). The categorical approach set forth in Taylor\\nv. United States, 495 U.S. 575 (1990), guides this inquiry.\\nSee also Descamps v. United States, 570 U.S. 254 (2013);\\nMathis v. United States, 136 S. Ct. 2243 (2016).\\n\\n Under the categorical approach, we first define the\\nfederal generic offense. Id. at 2248. We then determine\\n“whether the elements of the [state] crime of conviction\\nsufficiently match the elements of [the generic federal\\ncrime].” Id. In comparing the state and federal statutes, we\\nmay “‘look only to the statutory definitions’—i.e., the\\nelements—of a defendant’s prior offenses, and not ‘to the\\nparticular facts underlying those convictions.’” Descamps,\\n570 U.S. at 261 (quoting Taylor, 495 U.S. at 600). If the state\\nstatute of conviction criminalizes the same or less conduct\\nthan the federal generic definition of the offense, it is a\\ncategorical match to the federal offense and qualifies as a\\nprior conviction for federal sentencing enhancement\\npurposes. Id.\\n\\n Where the state statute of conviction criminalizes more\\nconduct than the federal generic definition of the offense, it\\nis not a categorical match. In that circumstance, we\\ndetermine the statute’s divisibility. Id at 262. A statute is\\nindivisible if it “sets out a single . . . set of elements to define\\na single crime,” even if it provides for alternative means of\\ncommitting the offense. Mathis, 136 S. Ct. at 2248. A statute\\n\\f10 UNITED STATES V. SCHOPP\\n\\nis divisible if it “list[s] elements in the alternative, . . .\\ndefin[ing] multiple crimes.” Id. at 2249. We apply the\\nmodified categorical approach for divisible statutes, where\\nwe “look[] to a limited class of documents . . . to determine\\nwhat crime, [and] with what elements, a defendant was\\nconvicted of.” Id.\\n\\n A\\n\\n Under the Taylor categorical approach, we begin by\\ndefining the generic federal offense—“sexual exploitation of\\nchildren.” We have yet to define the offense in a precedential\\nopinion, so this is a matter of first impression. 2\\n\\n In defining a generic federal offense, we employ\\nordinary principles of statutory interpretation to ascertain the\\nmeaning of the relevant term, beginning with the text of the\\nstatute. See Esquivel-Quintana v. Sessions, 137 S. Ct. 1562,\\n1569 (2017). As additional evidence of the generic meaning\\nof the federal offense we may consider related federal\\nstatutes, state criminal codes, the Model Penal Code, and the\\nordinary meaning of the offense. Id. at 1569–71.\\n\\n\\n 2\\n In two unpublished memorandum dispositions, we concluded that\\n“sexual exploitation of children” was not defined in 18 U.S.C. § 2251\\nand should therefore be defined according to its “ordinary,\\ncontemporary, and common meaning of the statutory words.” See United\\nStates v. Clark, 755 F. App’x 702 (9th Cir. 2019) (citations omitted);\\nUnited States v. Devore, No. 17-30205, 2019 WL 2333975, at *1 (9th\\nCir. May 31, 2019). Neither case actually defined the substantive term,\\neach holding instead that the defendants’ prior convictions were for\\noffenses “relat[ing] to the sexual exploitation of children.” Clark, 755 F.\\nApp’x at 702; Devore, 2019 WL 2333975 at *1 (emphasis added). Even\\nso, memorandum dispositions are nonbinding in subsequent\\ndispositions, as they are nonprecedential under our circuit rules. See 9th\\nCir. R. 36-3(a).\\n\\f UNITED STATES V. SCHOPP 11\\n\\n Starting with the text of the statute: Section 2251 is titled\\n“[s]exual exploitation of children” and sets forth a series of\\nfederal offenses, all related to the production of visual\\ndepictions of minors engaging in sexually explicit conduct.\\nSee 18 U.S.C. §§ 2251(a)–(d)(1). Specifically, § 2251\\nsubjects to criminal conviction any person who:\\n\\n employs, uses, persuades, induces, entices, or\\n coerces any minor to engage in, or who has a\\n minor assist any other person to engage in, or\\n who transports any minor in or affecting\\n interstate or foreign commerce . . . with the\\n intent that such minor engage in, any sexually\\n explicit conduct for the purpose of producing\\n any visual depiction of such conduct or for\\n the purpose of transmitting a live visual\\n depiction of such conduct.\\n\\nId. at § 2251(a); see also id. at § 2251(b) (concerning a\\nparent or legal guardian who knowingly permits a minor to\\nengage in sexually explicit conduct for the purpose of\\nproducing visual depictions of such conduct); id.\\nat § 2251(c)(1) (pertaining to any person who transports\\nsexually explicit visual depictions of a minor); id.\\nat § 2251(d)(1) (concerning any person who knowingly\\nseeks or offers through advertisements sexually explicit\\nvisual depictions of a minor). A “minor” is defined as a\\nperson under the age of 18. 18 U.S.C. § 2256(1). “Sexually\\nexplicit conduct” is defined for purposes of the section as\\nactual or simulated intercourse between persons; lascivious\\nexhibition of the genitals, breast, or pubic area; bestiality;\\nmasturbation; or sadistic or masochistic abuse. Id.\\nat § 2256(2). Each enumerated § 2251 offense references\\n§ 2251(e), the provision that sets forth the multiple-\\nconviction enhancement, stating that the offender “shall be\\n\\f12 UNITED STATES V. SCHOPP\\n\\npunished as provided under subsection (e).” Id.\\nat §§ 2251(a)–(d)(1). 18 U.S.C. § 2251(e), in turn, provides,\\nas relevant:\\n\\n [I]f such person has 2 or more prior\\n convictions under this chapter, chapter 71,\\n chapter 109A, or chapter 117, or under\\n section 920 of title 10 (article 120 of the\\n Uniform Code of Military Justice), or under\\n the laws of any State relating to the sexual\\n exploitation of children, such person shall be\\n fined under this title and imprisoned not less\\n than 35 years nor more than life.\\n\\n The statute’s section heading, when read in conjunction\\nwith the statutory text, largely resolves our question\\nconcerning the federal generic definition of “sexual\\nexploitation of children.” Congress titled § 2251 “[s]exual\\nexploitation of children.” By doing so, it signaled that the\\nenumerated federal offenses in § 2251 constitute the federal\\nunderstanding of the term “sexual exploitation of children,”\\nand that the term as subsequently used in § 2251(e) bears\\nthat same meaning.\\n\\n It is of no import that Congress did not set forth the\\nmeaning of the statute’s heading with a definitional\\nprovision (i.e., “sexual exploitation of children is defined\\nas”), although it did define terms used within the statute, in\\n18 U.S.C. § 2256. Congress frequently uses section headings\\nfor the precise purpose of conveying the reach of the offense\\na statute covers.\\n\\n For example, the Supreme Court in Esquivel-Quintana\\nv. Sessions concluded that “[s]ection 2243, which\\ncriminalizes ‘[s]exual abuse of a minor or ward,’ contains\\nthe only definition of that phrase in the United States Code.”\\n\\f UNITED STATES V. SCHOPP 13\\n\\n137 S. Ct. at 1570. Like § 2251, 18 U.S.C. § 2243 does not\\ncontain a definitional provision. Aside from two subsection\\nheadings which read “[sexual abuse] of a minor” and\\n“[sexual abuse] of a ward,” the text contains no express\\nreference to the term. See 18 U.S.C. §§ 2243(a)–(b). By\\nconcluding that § 2243 defines “sexual abuse of a minor or\\nward,” the Court indicated that a section heading may serve\\nas the basis for establishing what offense is being defined in\\nthe statutory text.\\n\\n The import of section headings for defining federal\\noffenses applies with equal force here. 3 Because § 2251 is\\ntitled “[s]exual exploitation of children,” the enumerated\\nelements of the offenses described in the statute constitute\\nthe definition of the offense bearing that name. All of the\\noffenses described in § 2251 concern visual depictions of\\nchildren engaging in sexually explicit conduct, with\\n“sexually explicit conduct” defined in a separate statute. See\\n18 U.S.C. §§ 2256(1)–(2). We accordingly hold that the\\nfederal generic definition of “sexual exploitation of\\nchildren” is defined within § 2251 as the production of visual\\n\\n 3\\n Concerns typically raised when a section heading is relied upon in\\nconstruing a statute are not here applicable. When section headings are\\ndiscounted, it is ordinarily because they are not part of the statute as\\noriginally enacted and therefore have no bearing on statutory meaning or\\ncongressional intent. See, e.g., United States v. Welden, 377 U.S. 95, 98\\nn.4 (1964) (“Certainly where, as here, the ‘change of arrangement’ was\\nmade by a codifier without the approval of Congress, it should be given\\nno weight.”); Mangum v. Action Collection Serv., Inc., 575 F.3d 935,\\n939–40 (9th Cir. 2009) (“There can be little doubt that titles, in general,\\nare of some help, but the mere addition of a title by the Law Revision\\nCounsel cannot change the meaning or intent of a statutory provision.”).\\nHere, however, § 2251, as originally enacted, contained the section\\nheading “Sexual exploitation of children.” See Protection of Children\\nAgainst Sexual Exploitation Act of 1977, Pub. L. No. 95-225, 92 Stat. 7\\n(1978).\\n\\f14 UNITED STATES V. SCHOPP\\n\\ndepictions of children engaging in sexually explicit conduct,\\nor put simply, the production of child pornography.\\n\\n Although the section heading is an independently\\nsufficient basis for our conclusion, it is not the only\\nindication that we have reached the proper definition of the\\noffense. Defining the federal generic definition of “sexual\\nexploitation of children” as the production of child\\npornography comports with other federal statutory\\ndefinitions; the U.S. Sentencing Guidelines; state criminal\\ncodes; and Black’s Law Dictionary.\\n\\n For starters, 18 U.S.C. § 3509, which sets forth court\\nprocedures for child victims, specifically defines “the term\\n‘exploitation’ [as] mean[ing] child pornography or child\\nprostitution.” 18 U.S.C. § 3509(a)(6). Not only does this\\ndefinition generally align with our definition of the offense,\\nit is illustrative of Congress’s understanding of exploitative\\noffenses. In defining “exploitation” as it pertains to child\\nvictims of sexual crimes by specific reference to child\\npornography and child prostitution, Congress illustrated that\\n“exploitation” necessarily requires some form of distinct\\nenrichment or benefit deriving from the sexual conduct,\\nother than sexual gratification from the conduct alone. 4\\n\\n Furthermore, the Sentencing Guidelines use the term\\n“sexually exploiting a minor” to refer to the “production of\\nsexually explicit visual or printed material” involving\\nminors. See U.S.S.G. § 2G2.1. And twenty-three states\\ncriminalize the “sexual exploitation of children” (or\\nsimilarly titled offenses, such as “sexual exploitation of a\\n\\n 4\\n Child prostitution is not covered under any of the federal offenses\\ndescribed in § 2251. There are no child prostitution prior convictions,\\nhowever, at issue here.\\n\\f UNITED STATES V. SCHOPP 15\\n\\nminor” or “unlawful exploitation of a minor”), all defining\\nthe offense as the production of child pornography. See\\nAlaska Stat. § 11.41.455; Ariz. Rev. Stat. § 13-3553; Cal.\\nPenal Code § 311.3; Colo. Rev. Stat. § 18-6-403(3); Del.\\nCode Ann. tit. 11, §1108; Ga. Code Ann. §16-12-100; Idaho\\nCode Ann. § 18-1507; Ind. Code § 35-42-4-4; Kan. Stat.\\nAnn. § 21-5510; Me. Stat., tit. 17-A, § 282; Miss. Code Ann.\\n§ 97-5-33; Mo. Rev. Stat. § 573.023; N.M. Stat. Ann. § 30-\\n6A-3; N.C. Gen. Stat. § 14-190.16; Okla. Stat. tit. 21,\\n§ 843.5; 18 Pa. Cons. Stat. § 6320; S.C. Code Ann. § 16-15-\\n395; S.D. Codified Laws § 22-22-24.3; Tenn. Code Ann.\\n§ 39-17-1005; Utah Code Ann. § 76-5b-201; Wash. Rev.\\nCode § 9.68A.040; Wis. Stat. § 948.05; Wyo. Stat. Ann. § 6-\\n4-303.\\n\\n Finally, Black’s Law Dictionary’s definition comports\\nwith our understanding of the term’s usage in § 2251. It\\ndefines “sexual exploitation” as “the use of a person, esp. a\\nchild, in prostitution, pornography, or other sexually\\nmanipulative activity.” Black’s Law Dictionary (11th ed.\\n2019). Like the definition contained in 18 U.S.C. § 3509,\\nBlack’s definition recognizes that “sexual exploitation”\\nincludes some form of enrichment of or benefit to the\\nperpetrator beyond sexual gratification, as evidenced by its\\nreference to the same sexually exploitative crimes, child\\npornography and child prostitution, covered in § 3509.\\n\\n In short, all roads lead to the same conclusion: “sexual\\nexploitation of children” as contained in § 2551(e) means the\\nproduction of child pornography. 5\\n\\n\\n 5\\n Our definition of “sexual exploitation of children” as contained in\\n§ 2251(e) conflicts with definitions adopted by two other federal\\nappellate courts. See United States v. Mills, 850 F.3d 693, 697 (4th Cir.\\n\\f16 UNITED STATES V. SCHOPP\\n\\n B\\n\\n Having defined the generic federal offense, the Taylor\\ncategorical approach dictates that we next compare the\\nfederal generic offense to the state statutes of conviction. See\\nMathis, 136 S. Ct. at 2248.\\n\\n Schopp’s prior Alaska convictions consist of various\\ndegrees of sexual assault and sexual abuse of minors. An\\noffender commits the offenses for which Schopp was\\nconvicted previously if he or she satisfies the element of\\neither engaging or attempting to engage in sexual penetration\\nor sexual contact with a minor, or encouraging a minor to\\nengage in sexual contact with another person. See Alaska\\nStat. § 11.41.410 (1983 Supp.); Alaska Stat. §§ 11.41.438,\\n11.41.436, 11.41.434 (1993). The federal generic definition\\nof “sexual exploitation of children,” on the other hand,\\ncriminalizes the production of visual depictions of children\\n\\n\\n2017) (defining the term as “tak[ing] advantage of children for selfish\\nand sexual purposes”); United States v. Smith, 367 F.3d 748, 751 (8th\\nCir. 2004) (defining “the term [as] unambiguously refer[ring] to any\\ncriminal sexual conduct with a child”); see also United States v. Pavulak,\\n700 F.3d 651, 673–74 (3d Cir. 2012) (concluding that the relevant prior\\nstate convictions “relat[e] to the sexual exploitation of children” but not\\ndefining the substantive term); United States v. Randolph, 364 F.3d 118,\\n122 (3d Cir. 2004) (same). But the analysis in those decisions is\\nfundamentally flawed. Our sister courts failed to employ ordinary\\nprinciples of statutory interpretation: they did not read the section\\nheading in conjunction with the text of the statute; and they did not\\nconsider other uses of the term in federal statutes, state criminal codes,\\nand the Guidelines. Moreover, their definitions obliterate the careful\\nlines Congress has drawn demarcating “sexual abuse” from “sexual\\nexploitation” by failing to grapple with the “exploitation” component of\\nthe federal offense and focusing exclusively on the “sexual abuse”\\naspect.\\n\\f UNITED STATES V. SCHOPP 17\\n\\nengaging in sexually explicit conduct, requiring in addition\\nto the underlying child sexual abuse, the creation of sexually\\nexplicit depictions. 6 Looking at their diverse elements, it is\\napparent that the state and federal statutes make criminal\\ndifferent conduct. The state statutes of convictions\\nconcerning sexual assault and sexual abuse are thus not a\\ncategorical match to the federal definition of “sexual\\nexploitation of children.” 7\\n\\n Accordingly, we hold that Schopp’s prior Alaska\\nconvictions are not a categorical match to the generic federal\\noffense of “sexual exploitation of children” and cannot serve\\n\\n\\n 6\\n Alaska Statutes § 11.41.436 incorporates the conduct aspects but\\nnot the visual depiction elements of a separate Alaska statute,\\n§ 11.41.455. Section 11.41.436 provides that “an offender commits the\\ncrime of sexual abuse of a minor in the second degree if . . . being\\n16 years of age or older, the offender aids, induces, causes, or encourages\\na person who is under 16 years of age to engage in conduct described in\\nAS 11.41.455(a)(2)–(6).” Alaska Stat. § 11.41.436(a)(4) (1990)\\n(emphasis added). In turn, Alaska Statutes § 11.41.455, which sets forth\\nthe offense of “unlawful exploitation of a minor,” lists in the subsections\\nincorporated in § 11.41.436 the “conduct” covered under the statute.\\nThat “conduct” includes: “(1) sexual penetration; (2) the lewd touching\\nof another person’s genitals, anus, or breast; (3) the lewd touching by\\nanother person of the child’s genitals, anus, or breast; (4) masturbation;\\n(5) bestiality; (6) the lewd exhibition of the child’s genitals; or (7) sexual\\nmasochism or sadism.” Alaska Stat. § 11.41.455(a)(1)–(7) (1990).\\nReading the statute in context, it is clear that Alaska Statutes\\n§ 11.41.436, Schopp’s statute of conviction for Sexual Abuse of a Minor\\nII, captures the “actual . . . conduct” listed in § 11.41.455(a)(2)–(6), but\\ndoes not incorporate the visual depiction aspect of that offense.\\n\\n 7\\n We need not determine whether the state statutes are divisible or\\nindivisible. The government does not argue that the modified categorical\\napproach applies or contend that the state statutes of conviction are\\ndivisible for purposes of that approach. See Descamps, 570 U.S. at 261–\\n62.\\n\\f18 UNITED STATES V. SCHOPP\\n\\nas predicate offenses for purposes of the multiple-conviction\\nenhancement under § 2251(e).\\n\\n C\\n\\n Aside from arguing that “sexual exploitation of children”\\nis not defined in § 2251—the argument we have rejected—\\nthe government offers two additional contentions\\nconcerning the meaning of “sexual exploitation of children”\\nin § 2251(e).\\n\\n First, espousing the reasoning in Mills, 850 F.3d at 693,\\nthe government contends that because the single-and-\\nmultiple-conviction enhancements in § 2251(e) once\\ncontained the same predicate offenses, Congress’s 2006\\namendment to the enhancement provision reflects a drafting\\nerror. The government is suggesting that Congress meant to\\nreplace “relating to sexual exploitation of children” in both\\nthe single- and multiple-conviction enhancements with\\n“relating to aggravated sexual abuse, sexual abuse, abusive\\nsexual contact involving a minor or ward,” see 18 U.S.C.\\n§ 2251(e), but then did so only for the single-conviction\\nenhancement.\\n\\n We “ha[ve] no free-floating power to rescue Congress\\nfrom its drafting errors.” King v. Burwell, 135 S. Ct. 2480,\\n2504 (2015) (citation and internal quotation marks omitted).\\n“Only when it is patently obvious to a reasonable reader that\\na drafting mistake has occurred may a court correct the\\nmistake.” Id. at 2504–05. The rare drafting errors that are\\ncorrected are “apparent from the face of the law,” such as the\\ndrafting error in “the Affordable Care Act [which] creates\\nthree separate Section 1563s.” Id. at 2505; see also Lamie v.\\nU.S. Tr., 540 U.S. 526, 542 (2004) (concluding that a\\ngrammatical error in an amended provision in the\\n\\f UNITED STATES V. SCHOPP 19\\n\\nBankruptcy Code was not ambiguous and declining to\\ncorrect Congress’s drafting error).\\n\\n Here, it is far from apparent that there was a drafting\\nerror. Congress quite reasonably could have included a\\nnarrower set of offenses for the multiple-conviction\\nenhancement, which carries the hefty maximum penalty of\\nlife imprisonment, than for the single-conviction\\nenhancement. Furthermore, the prosecution can obtain a\\nsubstantial term of imprisonment—between twenty-five and\\nfifty years—using the single-conviction enhancement statute\\nto capture the various “sexual abuse” state offenses not\\ncaptured under “sexual exploitation of children.” 8\\n\\n Second, the government contends that Congress\\nintended parallelism between the enumerated federal crimes\\nand the qualifying state offenses in the multiple-conviction\\nenhancement. See 18 U.S.C. §§ 1460–1470 (concerning\\nfederal obscenity offenses); 18 U.S.C. §§ 2241–2248\\n(concerning federal sexual abuse offenses); 18 U.S.C.\\n§§ 2421–2429 (concerning federal sex trafficking offenses);\\n10 U.S.C. § 920 (concerning federal sexual assault under the\\nUniform Code of Military Justice). The government regards\\nit as “nonsensical” for Congress to enumerate a broad\\ncategory of qualifying federal offenses, including the various\\nsexual abuse crimes, while limiting qualifying state offenses\\nto the production of child pornography.\\n\\n That argument falls of its own weight. The enumerated\\nfederal offenses are not limited to crimes involving children.\\n\\n 8\\n Notably, the parties here did not address in the district court the\\ndistinctions between the two enhancements, see supra, at 7, presumably\\nbecause they agreed on the imposition of a thirty-five-year sentence,\\nwhich would have been permissible under both enhancements.\\n\\f20 UNITED STATES V. SCHOPP\\n\\nSee, e.g., 18 U.S.C. §§ 1460–1466, 1468 (concerning\\nobscenity offenses not specifically involving children);\\n18 U.S.C. § 2242 (concerning sexual abuse not specifically\\ninvolving children); 18 U.S.C. §§ 2421–2421A, 2424\\n(concerning sex trafficking offenses not specifically\\ninvolving children); 10 U.S.C. § 920 (concerning sexual\\nassault under the Uniform Code of Military Justice not\\nspecifically involving children). Whatever else may be true\\nof the term “sexual exploitation of children,” the offenses\\ncovered by it quite evidently must involve children.\\n\\n Moreover, this disconnect between the qualifying prior\\nfederal convictions and qualifying prior state convictions for\\nsentence enhancements under § 2251(e) is not limited to the\\nmultiple-conviction enhancement. The single-conviction\\nenhancement exhibits the same lack of parallelism: Like the\\nmultiple-conviction enhancement, the single-conviction\\nenhancement contains federal offenses not limited to crimes\\ninvolving children, yet limits the qualifying prior state\\nconvictions to offenses that exclusively concern children\\n(e.g., the various sexual abuse offenses perpetuated against\\nchildren, sex trafficking of children, and possession of child\\npornography). See 18 U.S.C. § 2251(e). So no possible\\ninterpretation of § 2251(e) produces the parallelism between\\nthe enumerated federal offenses and the state offenses the\\ngovernment posits. We cannot say why Congress meant to\\npermit sentencing enhancement for a much broader swath of\\nfederal offenses than of state crimes. But there is no\\ndisputing that it did. The enumerated federal crimes are\\ntherefore entirely uninformative as to the meaning of the\\nterm “sexual exploitation of children” as it pertains to the\\nqualifying prior state offenses.\\n\\f UNITED STATES V. SCHOPP 21\\n\\n D\\n\\n The government makes one final argument as to the\\nscope of the § 2251(e) multiple-conviction enhancement—\\nthat the term “relating to,” which appears before “sexual\\nexploitation of children,” extends the reach of the\\nenhancement to a broader range of state criminal offenses\\ninvolving sexual abuse of children but lacking any visual\\ndepiction component. We cannot agree.\\n\\n Section 2251(e) does, of course, contain the phrase\\n“relating to sexual exploitation of children.” (emphasis\\nadded). And Supreme Court and Ninth Circuit cases have\\nconcluded that the phrase “relating to,” under certain\\ncircumstances, warrants a broader comparison of state\\noffenses to the federal generic crime at issue than would\\notherwise be the case. See Mellouli v. Lynch, 135 S. Ct.\\n1980, 1990 (2015); United States v. Reinhart, 893 F.3d 606,\\n610 (9th Cir. 2018). To determine the reach of the “relating\\nto” modifier here, we begin by examining each relevant\\ndecision concerning the term “relating to,” beginning with\\nour decision in United States v. Sinerius, 504 F.3d 737 (9th\\nCir. 2007).\\n\\n 1\\n\\n This court considered in Sinerius whether the\\ndefendant’s prior Montana conviction for sexual assault\\nunder Montana Code Annotated § 45-5-502 was a predicate\\noffense for a sentencing enhancement under 18 U.S.C.\\n§§ 2252A(b)(1)–(2). Sections 2252(A)(b)(1)–(2) set forth a\\nmandatory minimum sentence for the possession of child\\npornography if a defendant has “a prior conviction . . . under\\nthe laws of any State relating to aggravated sexual abuse,\\nsexual abuse, or abusive sexual conduct involving a minor\\nor ward.” 504 F.3d at 740. Sinerius defining “sexual abuse”\\n\\f22 UNITED STATES V. SCHOPP\\n\\naccording to the “ordinary, contemporary, and common\\nmeaning of the statutory words,” gave “sexual” its ordinary\\nmeaning and defined “abuse” as meaning to “misuse . . . to\\nuse or treat so as to injure, hurt, or damage . . . to commit\\nindecent assault on.” Id. (quoting United States v. Lopez-\\nSolis, 447 F.3d 1201, 1206–07 (9th Cir. 2006)).\\n\\n Sinerius rejected the defendant’s argument that the\\nfederal offense of “sexual abuse” as delineated in 18 U.S.C.\\n§ 2242 defines “sexual abuse” as used in § 2252A. Id.\\nat 742–43. 9 It concluded that § 2242’s use of the term was\\n\\n\\n 9\\n Section 2242, which is titled “[s]exual abuse” but like § 2251 does\\nnot include an express definition of the phrase used as the title, provides\\nin full:\\n\\n Whoever, in the special maritime and territorial\\n jurisdiction of the United States or in a Federal prison,\\n or in any prison, institution, or facility in which\\n persons are held in custody by direction of or pursuant\\n to a contract or agreement with the head of any Federal\\n department or agency, knowingly–\\n\\n (1) causes another person to engage in a sexual act by\\n threatening or placing that other person in fear (other\\n than by threatening or placing that other person in fear\\n that any person will be subjected to death, serious\\n bodily injury, or kidnapping); or\\n\\n (2) engages in a sexual act with another person if that\\n other person is–\\n\\n (A) incapable of appraising the nature of the conduct;\\n or\\n\\n (B) physically incapable of declining participation in,\\n or communicating unwillingness to engage in, that\\n sexual act; or attempts to do so, shall be fined under\\n\\f UNITED STATES V. SCHOPP 23\\n\\ninapplicable because it is located in an entirely different\\nchapter. Id. The court then held that the prior Montana\\nconviction at the very least “relat[ed] to . . . sexual abuse,”\\nas the least egregious conduct under the Montana statute—\\n“consensual” sexual contact by a sixteen-year-old toward a\\nthirteen-year-old—categorically matched the generic federal\\ndefinition of “sexual abuse.” Id. at 741.\\n\\n Years later, the Supreme Court in Mellouli v. Lynch,\\n135 S. Ct. at 1980, provided significant guidance as to the\\nreach of the phrase “relating to” in the categorical inquiry\\ncontext. Mellouli considered whether a Kansas misdemeanor\\nconviction for possessing drug paraphernalia triggered\\n8 U.S.C. § 1227, the federal immigration removal statute.\\n135 S. Ct. at 1984. Section 1227 applies to noncitizens\\n“convicted of a violation of . . . any law or regulation of a\\nState, the United States, or a foreign country relating to a\\ncontrolled substance (as defined in section 802 of Title 21).”\\n8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added). The\\ngovernment, relying on the federal removal statute’s\\n“relating to” language, argued that a substantial overlap in\\nthe state and federal drug schedules permits “any drug\\ncrime” to trigger the federal removal statute, regardless of\\nwhether the state paraphernalia offense was limited to a\\nfederally controlled substance. Id. at 1989–91.\\n\\n Acknowledging that the “relating to” term broadened the\\neffect of the statutory provision to a degree, Mellouli\\nconcluded that the phrase nonetheless has significant limits,\\nid. at 1990–91, as “[c]ontext . . . may tug . . . in favor of a\\nnarrower reading.” Id. at 1990 (internal quotation marks,\\ncitation, and alterations omitted). Upon reviewing § 1227’s\\n\\n this title and imprisoned for any term of years or for\\n life.\\n\\f24 UNITED STATES V. SCHOPP\\n\\ncontext, specifically its text and history, the Court concluded\\nthat Congress and the Board of Immigration Appeals\\n“required a direct link between [a noncitizen’s] crime of\\nconviction and a particular federally controlled drug.” Id.\\nThe “relating to” phrase, that is, does not permit an\\nexpansion beyond the substantive linchpin element of the\\nfederal generic crime—there, federally controlled\\nsubstances—although it does permit inclusion of various\\nkinds of conduct involving that generic crime. Id. The Court\\ntherefore held that the statute’s parenthetical reference to\\n21 U.S.C. § 802 narrowed its application to convictions\\nstemming from federally controlled substances specifically\\ndefined in § 802. Id. at 1990. Because the Kansas\\nparaphernalia statute made criminal the act of using drug\\nparaphernalia to store or conceal any controlled substances,\\nnot just those defined in § 802, the defendant’s prior state\\nconviction did not trigger the federal removal statute. Id.\\nat 1984, 1991.\\n\\n We applied Mellouli’s interpretation of “relating to” in\\nUnited States v. Sullivan, 797 F.3d at 635. Sullivan\\nconsidered whether the defendant’s prior California\\nconvictions for unlawful sexual intercourse and oral\\ncopulation with a minor triggered federal sentencing\\nenhancements under the single prior conviction aspect of\\n18 U.S.C. §§ 2251(e) and 2252(b)(2). Id. at 635. Both\\n§§ 2251(e) and 2252(b)(2) enhancements apply when a\\ndefendant has a “prior conviction . . . under the laws of any\\nState relating to aggravated sexual abuse, sexual abuse, or\\nabusive sexual contact involving a minor or ward,” but the\\nmandatory minimums differ. 10 Like Sinerius, Sullivan\\n\\n\\n 10\\n Section 2252(b)(2) reads, in pertinent part:\\n\\f UNITED STATES V. SCHOPP 25\\n\\ndefined “sexual” according to its ordinary meaning and\\n“abuse” as meaning to “misuse . . . to use or treat so as to\\ninjure, hurt, or damage . . . to commit indecent assault on.”\\nId. at 636. (quoting Sinerius, 504 F.3d at 740). In comparing\\nthe federal and state statutes, the court concluded that the\\nprior state convictions were not a categorical match to the\\nfederal generic definition because they did not contain a\\nmens rea requirement. Id. at 637. Sullivan concluded,\\nhowever, that the prior state convictions were still predicate\\noffenses because they “relat[e] to . . . sexual abuse.” Id. at\\n641. In so concluding, Sullivan reasoned that, unlike the\\nfederal removal statute in Mellouli, the text and history of\\nthe two federal enhancement statutes at issue neither\\nrequired a “direct link” between the federal and state statutes\\nof conviction nor contained a limiting parenthetical\\nnarrowing the effect of the “relating to” language. Id. at 640.\\n\\n The most recent decision from this court regarding the\\nphrase “relating to” in the categorical approach context,\\nUnited States v. Reinhart, 893 F.3d at 606, considered\\nwhether the defendant’s prior California convictions for\\npossession of child pornography and sexual exploitation of\\na child were convictions “relating to child pornography”\\nunder § 2252(b)(2), one of the sentencing enhancement\\n\\n\\n Whoever violates, or attempts or conspires to violate,\\n paragraph (4) of subsection (a) shall be fined under\\n this title or imprisoned not more than 10 years, or both,\\n . . . if such person has a prior conviction under . . . the\\n laws of any State relating to aggravated sexual abuse,\\n sexual abuse, or abusive sexual conduct involving a\\n minor or ward, or the production, possession, receipt,\\n mailing, sale, distribution, shipment, or transportation\\n of child pornography, such person shall be fined under\\n this title and imprisoned for not less than 10 years nor\\n more than 20 years.\\n\\f26 UNITED STATES V. SCHOPP\\n\\nprovisions reviewed in Sullivan. 893 F.3d at 608. Unlike\\nthe federal offenses at issue in Sinerius and Sullivan, the\\ngeneric federal offense Reinhart considered—“child\\npornography”—and the related term “sexually explicit\\nconduct” are defined within the same chapter as the federal\\nenhancement. Id. at 613. Reinhart concluded that when there\\nare federal definitions of the relevant terms within the same\\nchapter as the federal statute, the court must apply those\\ndefinitions to enhancement provisions as well as to others.\\nId. at 615. It likewise concluded that the presence of such\\ndefinitions serves as requisite context “tug[ging] . . . in favor\\nof a narrower reading” of “relating to.” Id. at 615 (citing\\nMellouli, 135 S. Ct. at 1990). Reinhart expressly did not,\\nhowever, read the “relating to” language out of existence;\\nthe court instead “anchored [it] to the federal definition of\\nchild pornography.” Id. at 616.\\n\\n Applying the traditional elements-based categorical\\napproach, Reinhart held that the defendant’s prior state\\nconvictions in that case were not a categorical match to the\\ngeneric federal definition of “child pornography.” Id. at 621.\\nBoth statutes, California Penal Code § 311.11(a) and\\nCalifornia Penal Code § 311.3(a), defined “sexual conduct”\\nmore broadly than the federal definitions of “child\\npornography” and “sexually explicit conduct.” Id. at 617–\\n19. Because both statutes were indivisible, the modified\\ncategorical approach did not apply. Reinhart therefore held\\nthat neither California statute triggered an enhancement\\nunder § 2252(b)(2). Id. at 620–21.\\n\\n 2\\n\\n Using these cases as guidance, we address how the\\nphrase “relating to” in § 2251(e) applies here. Under\\nMellouli and Reinhart, a statute’s context, particularly its\\ntext and history, determine the reach of the phrase. See\\n\\f UNITED STATES V. SCHOPP 27\\n\\nMellouli, 135 S. Ct. at 1990; Reinhart, 893 F.3d at 614. The\\nlanguage of § 2251(e) tugs in favor of reading “relating to”\\nas reaching various kinds of conduct involving the central\\nsubstantive concept, “sexual exploitation of children,” but\\nnot activity that does not include the key visual depiction\\naspect of that term.\\n\\n For starters, the term “sexual exploitation of children”\\nheads all offenses included in § 2251, anchoring the\\nmeaning of the “relating to” language to the definition of the\\ngeneric federal offense as the production of child\\npornography. Reinhart, 893 F.3d at 614. Section 2251’s\\nsubsections then establish that various sorts of conduct\\n“relating to the sexual exploitation of children” are\\nproscribed: Subsection (b) relates to parents and custodians,\\nwho sexually exploit their children; subsection (c)(1) relates\\nto persons who transport child pornography through\\ninterstate or foreign commerce; and subsection (d)(1) relates\\nto persons who publish any notice or advertisement that\\nseeks or offers to distribute or receive child pornography.\\nAccordingly, a state conviction “relat[es] to the sexual\\nexploitation of children” if it captures the conduct in those\\nsubsections, which all contain an element of exploitation that\\nextends beyond unlawful sexual conduct with a minor. 11\\n\\n Schopp’s various prior state convictions for the sexual\\nabuse and sexual assault of minors do not contain the\\nrequisite element of “exploitation,” as no visual depiction of\\nsexually explicit conduct is required. His prior convictions\\n\\n\\n\\n 11\\n It may be that state offenses that have different conduct elements\\nfrom those covered in § 2251 but that also pertain to child pornography\\nare covered as well. As the issue is not raised, we do not decide it.\\n\\f28 UNITED STATES V. SCHOPP\\n\\nfor sexual abuse thus do not “relat[e] to the sexual\\nexploitation of children” within the meaning of § 2251.\\n\\n Despite the statutory evidence to the contrary, the\\ngovernment contends that “relating to sexual exploitation of\\nchildren” includes all “sexual abuse” crimes involving\\nminors, observing that the production of child pornography\\ndepicts such sexual abuse. In other words, although the\\nproduction of child pornography statute contains other\\nelements as well, the sexual abuse of a child is a necessary\\ncomponent of the offense.\\n\\n But the statutory materials leave no doubt that Congress\\nconsiders “sexual exploitation” and “sexual abuse” to be\\ndistinct categories of offenses; “sexual exploitation,” if\\nanything, is a subset of “sexual abuse.” For example,\\nChapter 110 of Title 18, which includes § 2251, is titled\\n“Sexual Exploitation and Other Abuse of Children,”\\nconfirming that not all “[s]exual . . . abuse of children” is\\n“sexual exploitation of children.” Rather, “sexual\\nexploitation,” limited to the production of child\\npornography, covers a narrower set of conduct than other\\nsexual abuse of children offenses.\\n\\n Mellouli and Reinhart do not permit the government’s\\nattempt at so broadening the scope of the statute through the\\n“relating to” clause, as to obliterate the careful distinction\\ndrawn in the statute between “sexual exploitation of\\nchildren” and other forms of child sexual abuse. Expanding\\nthe statutorily delineated generic offenses through the phrase\\n“relating to” to include categories of federal offenses that\\ncould have been included in the multiple-conviction\\nenhancement provision but were not impermissibly throws\\noverboard the overall statutory scheme.\\n\\f UNITED STATES V. SCHOPP 29\\n\\n We note, in particular, that the single-conviction\\nenhancement in § 2251(e) delineates in haec verba the very\\nsorts of state child sexual abuse offenses the government\\nmaintains are secretly buried in the “relating to” phrase that\\nprecedes “sexual exploitation of children” in the same\\nsubsection. Why Congress would have expressly added the\\nchild sex abuse crimes to the single-conviction enhancement\\nif they were already there in the earlier version of that\\nenhancement, see supra, 19–20, we are not told. Nor are we\\ntold why the single and multiple conviction enhancements in\\nthe same subsection read so differently if they mean the same\\nthing.\\n\\n We therefore adhere to our conclusion that the “relating\\nto” term in § 2251(e) encompasses state offenses that are a\\ncategorical match to the federal offense of production of\\nchild pornography and state offenses involving the\\nproduction of such pornography, that is, the conduct\\nenumerated in § 2251’s various subsections. It does not\\ninclude offenses that entirely lack the visual depictions\\nelement that separates “sexual exploitation of children” from\\nother forms of child abuse in the federal criminal offense\\npanoply.\\n\\n Because Schopp’s prior Alaska convictions concerning\\nthe sexual abuse and sexual assault of minors do not require\\na visual depiction element, they do not “relat[e] to the sexual\\nexploitation of children” and cannot serve as predicate\\noffenses for purposes of the multiple-conviction\\nenhancement in § 2251(e). The district court therefore erred\\nin applying the enhancement and so in sentencing Schopp to\\nlife imprisonment.\\n\\f30 UNITED STATES V. SCHOPP\\n\\n E\\n\\n Because Schopp failed to object to the application of the\\nmultiple-conviction enhancement below, we review for\\nplain error. See United States v. Olano, 507 U.S. 725, 731–\\n32 (1993). “Plain error is (1) error, (2) that is plain, and\\n(3) that affects substantial rights . . . [and] (4) seriously\\naffects the fairness, integrity, or public reputation of judicial\\nproceedings.” United States v. Ameline, 409 F.3d 1073, 1078\\n(9th Cir. 2005) (en banc) (internal citation and alterations\\nomitted).\\n\\n The district court’s imposition of the wrong sentencing\\nenhancement was both error and plain; it affected Schopp’s\\nsubstantial rights because it led to a sentence exceeding the\\nstatutory maximum; and “seriously affect[ed] the fairness,\\nintegrity or public reputation of judicial proceedings”\\nbecause “it is a miscarriage of justice to give a person an\\nillegal sentence.” Id. at 1081. We therefore hold that the\\ndistrict court committed plain error by applying § 2251(e)’s\\nmultiple-conviction enhancement.\\n\\n IV\\n\\n In sum, “sexual exploitation of children” as contained in\\n18 U.S.C. § 2251 is defined within that statute as the\\nproduction of child pornography. Schopp’s prior Alaska\\nconvictions for sexual abuse and sexual assault with minors\\ndo not “relat[e] to the sexual exploitation of children” and so\\ncannot serve as predicate offenses under § 2251(e).\\nAccordingly, we REVERSE Schopp’s sentence and\\nREMAND for resentencing.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4463,"cells":{"id":{"kind":"number","value":4661504,"string":"4,661,504"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Nahach Garay"},"decision_date":{"kind":"string","value":"2019-09-17"},"docket_number":{"kind":"string","value":"18-50054"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Mary M. Schroeder and Susan P. Graber, Circuit Judges, and Michael H. Watson,* District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"SCHROEDER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\n UNITED STATES OF AMERICA, No. 18-50054\\n Plaintiff-Appellee,\\n D.C. No.\\n v. 2:17-cr-00188-\\n RGK-1\\n NAHACH MANUEL GARAY, AKA\\n Nahach Guerrero, AKA Polar Bear,\\n Defendant-Appellant. OPINION\\n\\n\\n Appeal from the United States District Court\\n for the Central District of California\\n R. Gary Klausner, District Judge, Presiding\\n\\n Argued and Submitted August 13, 2019\\n Pasadena, California\\n\\n Filed September 17, 2019\\n\\n Before: Mary M. Schroeder and Susan P. Graber, Circuit\\n Judges, and Michael H. Watson,* District Judge.\\n\\n Opinion by Judge Schroeder\\n\\n\\n\\n\\n *\\n The Honorable Michael H. Watson, United States District Judge for\\nthe Southern District of Ohio, sitting by designation.\\n\\f2 UNITED STATES V. GARAY\\n\\n SUMMARY**\\n\\n\\n Criminal Law\\n\\n The panel affirmed a conviction for being a felon in\\npossession of a firearm in a case in which the district court\\ndenied the defendant’s motion to suppress evidence found as\\na result of the search of his cell phone, seized from his rental\\ncar after a high-speed chase.\\n\\n Under Byrd v. United States , 138 S. Ct. 1518 (2018),\\nwhich clarified that Fourth Amendment standing is not\\njurisdictional, the panel did not need to reach the\\ngovernment’s threshold contention that the defendant lacked\\nstanding to challenge the search of the phone before\\nanalyzing the merits of the defendant’s Fourth Amendment\\nclaims.\\n\\n The panel held that the district court did not err in\\nconcluding that the defendant’s cell phone was lawfully\\nseized as part of a valid inventory search, where there was no\\nreason to conclude that the search was used to rummage for\\nevidence. The panel noted that administrative errors should\\nnot, on their own, invalidate inventory searches.\\n\\n The panel held that the district court correctly determined\\nthat probable cause supported the two warrants issued to\\nsearch the defendant’s cell phone. The panel explained that\\naffiants seeking a warrant may state conclusions based on\\ntraining and experience without having to detail that\\n\\n **\\n This summary constitutes no part of the opinion of the court. It has\\nbeen prepared by court staff for the convenience of the reader.\\n\\f UNITED STATES V. GARAY 3\\n\\nexperience. The panel concluded that there was a sufficient\\nfactual basis for the issuing magistrate judges to conclude,\\nindependently of the affiants’ beliefs, that evidence might be\\nfound on the defendant’s cell phone.\\n\\n\\n COUNSEL\\n\\nMichael Tanaka (argued), Los Angeles, California, for\\nDefendant-Appellant.\\n\\nJulia L. Reese (argued), Assistant United States Attorney; L.\\nAshley Aull, Chief, Criminal Division; Nicola T. Hanna,\\nUnited States Attorney; United States Attorney’s Office, Los\\nAngeles, California; for Plaintiff-Appellee.\\n\\n\\n OPINION\\n\\nSCHROEDER, Circuit Judge:\\n\\n Nahach Garay appeals his conviction under 18 U.S.C.\\n§ 922(g)(1) as a felon in possession of a firearm. He\\nchallenges the denial of his motion to suppress evidence\\nfound as a result of the search of his cell phone, seized from\\nhis rental car after a high-speed chase. The phone contained\\nphotographs that tied him to the firearm that was recovered\\nfrom the car. The district court ruled that the phone was\\nlawfully seized in an inventory search of the car and that the\\nwarrants authorizing the search of the phone’s contents were\\nsupported by probable cause.\\n\\n The government’s threshold contention on appeal is that\\nGaray lacked standing to challenge the search of the phone\\n\\f4 UNITED STATES V. GARAY\\n\\nbecause he had abandoned any reasonable expectation of\\nprivacy in its contents when he ran from the car. We need not\\naddress this question. Under the Supreme Court’s recent\\ndecision in Byrd v. United States, 138 S. Ct. 1518, 1530\\n(2018), such an inquiry is not jurisdictional, and, so, we need\\nnot consider it before we analyze the merits of Garay’s Fourth\\nAmendment claim. Because we conclude that the searches of\\nboth the car and the phone were lawful, we affirm.\\n\\n BACKGROUND\\n\\n When San Bernardino County deputy sheriffs attempted,\\nin March of 2017, to stop Garay for a traffic violation, Garay,\\nwith a passenger in the car, led them on a high-speed chase.\\nThe chase culminated in Garay’s crashing the car into a ditch\\nand attempting to flee on foot. A search of his person\\nrevealed thousands of dollars in cash and quantities of four\\ndifferent illegal drugs. He was placed under arrest.\\n\\n With the car totaled in the ditch, the officers had to\\narrange to have the car towed. In preparation, they searched\\nthe contents of the car, finding two loaded rifles, ammunition,\\nand two cell phones, one of which was claimed by the\\npassenger. The officers filled out a Vehicle Report on which\\nthey listed some property (firearms), but they did not list\\nother property in the “remarks” section. They booked the\\nrifles, ammunition, and cell phones as evidence.\\n\\n To search the contents of the cell phones, state law-\\nenforcement officers obtained a warrant on the strength of an\\nofficer’s affidavit describing the circumstances leading up to\\nthe discovery of the phones. These circumstances included\\nthe drugs and cash found on Garay’s person and the affiant’s\\nknowledge, based on training and experience, that individuals\\n\\f UNITED STATES V. GARAY 5\\n\\nwho possess firearms take pictures of them and communicate\\nvia text messages to further their criminal activity. When the\\ncase was referred for federal prosecution, a second, federal\\nwarrant was issued on the basis of similar information as well\\nas on the “collective experiences” of law enforcement agents\\nthat felons prohibited from possessing guns use mobile\\nphones to coordinate buying and selling guns.\\n\\n Garay contends that the warrantless seizure of the phone\\nitself was unreasonable and that the affidavits supporting the\\nsearch of the contents of Garay’s phone were inadequate.\\n\\n DISCUSSION\\n\\nI. The Issue of Standing\\n\\n The government argues that Garay abandoned any\\nreasonable expectation of privacy he may have had in the\\ncontents of his phone when he left it in a totaled car and tried\\nto flee from the arresting officers. This, the government\\nargues, is a threshold issue that prevents Garay from having\\nstanding to challenge the search or seizure of the phone.\\n\\n The Supreme Court recently clarified in Byrd that Fourth\\nAmendment standing, unlike Article III standing in the civil\\ncontext, is “not a jurisdictional question and hence need not\\nbe addressed before addressing other aspects of the merits of\\na Fourth Amendment claim.” 138 S. Ct. at 1530. We\\nconclude that the search and seizure of Garay’s cell phone\\nwere both reasonable under the Fourth Amendment.\\nAccordingly, we need not decide whether Garay abandoned\\nall reasonable expectation of privacy in the cell phone.\\n\\f6 UNITED STATES V. GARAY\\n\\nII. The Inventory Search and the Reasonableness of the\\n Seizure of the Phone\\n\\n Before towing or impounding a vehicle, officers may\\nseize and inventory the contents of that vehicle in order to\\navoid liability for missing items. See South Dakota v.\\nOpperman, 428 U.S. 364, 369 (1976). If done according to\\nstandardized criteria and not in “bad faith or for the sole\\npurpose of investigation,” police inventory procedures satisfy\\nthe Fourth Amendment. Colorado v. Bertine, 479 U.S. 367,\\n372 (1987).\\n\\n The government correctly contends that the seizure of\\nGaray’s cell phone was justified as part of an inventory\\nsearch in preparation for the car’s towing. Garay does not\\ndispute that the decision to tow the car was a reasonable and\\ngood-faith exercise of the officers’ care-taking function;\\nGaray had just been arrested and the car was totaled and lying\\nin a ditch. See also Cal. Veh. Code § 22651(h)(1)\\n(authorizing officers to tow car after driver is arrested). It is\\nwell established that, once a vehicle has been impounded or\\ntowed, police are permitted to inventory the car’s contents.\\nOpperman, 428 U.S. at 369. Garay contends, however, that\\nthe officers used their authority to inventory the car’s\\ncontents here to unlawfully rummage for evidence. Inventory\\nsearches are consistent with the Fourth Amendment only if\\nthey are not used as an excuse to rummage for evidence. See\\nFlorida v. Wells, 495 U.S. 1, 4 (1990) (“an inventory search\\nmust not be a ruse for a general rummaging in order to\\ndiscover incriminating evidence”).\\n\\n To support his argument that this search was pretextual,\\nGaray cites the absence of any inventory sheet listing the\\nproperty found inside the car, a list required under the\\n\\f UNITED STATES V. GARAY 7\\n\\nsheriff’s department’s inventory policy. As noted above, the\\nofficers listed only some property in the Vehicle Report,\\nthough they booked additional property as evidence. The\\ndistrict court dismissed this argument, pointing out that a\\ndepartment’s policies do not define constitutional rights.\\nSuch policies do, however, assist courts to determine whether\\nan inventory search is legitimate, as opposed to pretextual.\\nSee United States v. Wanless, 882 F.2d 1459, 1463–64 (9th\\nCir. 1989) (invalidating an inventory search that deviated\\nfrom required procedures).\\n\\n In this case, we see no reason to hold that the officers\\nwere rummaging for evidence. The contents of the wrecked\\ncar had to be removed and safeguarded before the car was\\ntowed from the site. That is the essence of an inventory\\nsearch. Because the site was in effect a crime scene, the\\nitems in the car were sensibly treated as evidence. The\\nsearching officer complied with the department’s inventory-\\nsearch policy in material respects. For instance, he obtained\\nthe tow truck driver’s signature and noted the date and time\\nof the driver’s arrival; he obtained a file number for the\\ninventory; he checked a box on the relevant inventory form\\nindicating that items of potential value were in the car before\\nidentifying and booking the items recovered from the car as\\n“evidence/property.”\\n\\n That the officer did not complete the inventory list that\\nordinarily would be completed as part of a department\\ninventory search is not, on its own, a material deviation from\\npolicy. Other circuits have expressly recognized that the\\nfailure to complete an inventory form does not invalidate an\\ninventory search. See United States v. Loaiza-Marin,\\n832 F.2d 867, 869 (5th Cir. 1987) (per curiam) (“failure to\\ncompile the written inventory does not render the inventory\\n\\f8 UNITED STATES V. GARAY\\n\\nsearch invalid”); United States v. Trullo, 790 F.2d 205, 206\\n(1st Cir. 1986) (“We will not hold that the officer’s failure,\\ntechnically, to follow the inventory form procedures for\\nvaluables meant it was not an inventory search.”); United\\nStates v. O’Bryant, 775 F.2d 1528, 1534 (11th Cir. 1985)\\n(“We also reject O’Bryant’s contention that the inventory\\nsearch exception to the general prohibition against\\nwarrantless searches was violated because [the officer] did\\nnot prepare a complete list of the briefcase's contents.”);\\nUnited States v. Richardson, 2000 WL 1273425, at *2 (4th\\nCir. Sept. 5, 2000) (per curiam) (unpublished) (“[T]he failure\\nto complete an inventory list does not render suspect either\\nthe motive for conducting the search or the reasonableness\\nthereof.”).\\n\\n Further, we as well as several other circuits have upheld\\ninventory searches despite other comparable administrative\\nerrors. See, e.g., United States v. Penn, 233 F.3d 1111,\\n1115–17 (9th Cir. 2000) (inventory search lawful even\\nthough officer may have allowed passenger to remove\\npersonal property from the car before the search, which was\\n“contrary” to “police and city policy”); see also United States\\nv. Williams, 777 F.3d 1013, 1016 (8th Cir. 2015) (loose items\\nof minimal value omitted from inventory list); United States\\nv. Garreau, 658 F.3d 854, 857 (8th Cir. 2011) (stolen firearm\\nomitted from inventory list); United States v. Cartwright,\\n630 F.3d 610, 616 (7th Cir. 2010) (incomplete inventory list);\\nUnited States v. Lopez, 547 F.3d 364, 371 (2d Cir. 2008)\\n(officer failed to “itemize each object”).\\n\\n The underlying principle was perhaps best stated in\\nUnited States v. Rowland, where the Eighth Circuit explained\\nthat administrative errors should not, on their own, invalidate\\ninventory searches: “There must be something else;\\n\\f UNITED STATES V. GARAY 9\\n\\nsomething to suggest the police raised ‘the inventory-search\\nbanner in an after-the-fact attempt to justify’ a simple\\ninvestigatory search for incriminating evidence.” 341 F.3d\\n774, 780 (8th Cir. 2003) (quoting United States v. Marshall,\\n986 F.2d 1171, 1175 (8th Cir. 1993)). The point is also\\nillustrated by our recent decision in United States v. Johnson,\\nin which we held that the search was not an inventory search\\n“because the officers themselves explicitly admitted that they\\nseized items from the car in an effort to search for evidence\\nof criminal activity.” 889 F.3d 1120, 1127–28 (9th Cir. 2018)\\n(per curiam).\\n\\n Here, by contrast, we find no reason to conclude that the\\ninventory search was used to rummage for evidence. Given\\nthe circumstances leading up to the search, the officers no\\ndoubt expected to find evidence of criminal activity inside the\\nvehicle. But that expectation would not invalidate an\\notherwise reasonable inventory search. See United States v.\\nBowhay, 992 F.2d 229, 231 (9th Cir. 1993) (explaining that\\n“dual motives” in inventory-search context are permissible).\\nThe district court did not err in concluding that Garay’s cell\\nphone was lawfully seized as part of a valid inventory search.\\n\\nIII. Adequacy of Warrant to Search Cell Phone’s\\n Contents\\n\\n Two magistrate judges, one state and one federal, issued\\nwarrants to search the cell phone’s contents. Garay argues\\nthat the affidavits contained in the warrant applications were\\nnot supported by probable cause. The question before us,\\ntherefore, is whether the magistrate judges had a substantial\\nbasis to conclude that the warrant applications established\\nprobable cause. See United States v. Celestine, 324 F.3d\\n1095, 1100 (9th Cir. 2003). An affidavit in support of a\\n\\f10 UNITED STATES V. GARAY\\n\\nsearch warrant shows probable cause if, under the totality of\\nthe circumstances, it reveals “a fair probability that\\ncontraband or evidence of a crime will be found in a\\nparticular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).\\n\\n The district court found the support for each warrant to be\\nmore than adequate. The affidavit in support of the state\\nwarrant described all the relevant circumstances. These\\nincluded the high-speed chase leading up to the crash and\\nGaray’s attempt to flee, followed by Garay’s arrest and the\\ndiscovery of drugs and cash on his person, as well as the\\ndiscovery of loaded guns, ammunition, and cell phones inside\\nthe car. The affidavit also recited the affiant’s training and\\nexperience, reflecting that people who possess firearms “like\\nto take pictures of [those items]” with their cell phones, and\\n“will also communicate via text” regarding criminal activity.\\n\\n When the case was later referred for federal prosecution,\\nthe affidavit for the federal warrant covered the same ground\\nas the state affidavit, but was even more specific in stating\\nthat the affiant, based on her training and experience, as well\\nas the “collective experiences” of other law enforcement\\nagents, knew that felons prohibited from owning guns “often\\nuse digital devices, including mobile phones, to coordinate\\nbuying or selling those guns . . . to promote their possession\\nof guns to others” and to contact suppliers for future\\npurchases or referrals.\\n\\n Garay nevertheless contends that both warrants lacked\\nprobable cause. He asserts that the affiants’ belief on the\\nbasis of their “training and experience,” unadorned by\\nsufficient supporting details, cannot properly be considered\\nin establishing probable cause. He argues that, before the\\naffiants’ beliefs may be taken into consideration, the affiants\\n\\f UNITED STATES V. GARAY 11\\n\\nmust detail the nature of their expertise or experience and\\nhow that experience bears on the facts prompting the search.\\n\\n Our standards, however, are not so stringent. We have\\nlong held that affiants seeking a warrant may state\\nconclusions based on training and experience without having\\nto detail that experience. See, e.g., United States v.\\nHendershot, 614 F.2d 648, 654 (9th Cir. 1980) (finding that\\naffiant’s conclusion “based on [his] experience from prior\\nbank robbery investigations” was proper; emphasizing that\\n“[i]t is not necessary to detail that experience to determine\\nthat the conclusion is not capricious” (internal quotation\\nmarks omitted)). We have also held that magistrate judges\\nmay “rely on the conclusions of experienced law enforcement\\nofficers regarding where evidence of a crime is likely to be\\nfound.” United States v. Fannin, 817 F.2d 1379, 1382 (9th\\nCir. 1987) (citing United States v. Crozier, 777 F.2d 1376,\\n1380 (9th Cir. 1985)).\\n\\n Further, there was a sufficient factual basis for both\\nmagistrate judges to conclude, independently of the affiants’\\nbeliefs, that evidence might be found on Garay’s cell phone.\\nGaray relies on authorities in which the warrant applications\\nhad contained no factual basis from which to connect the\\nplace to be searched with the evidence sought. See, e.g.,\\nUnited States v. Underwood, 725 F.3d 1076, 1086 (9th Cir.\\n2013) (“[T]he affidavit provides no factual basis for the\\nconclusion that drug trafficking evidence would be found at\\nUnderwood’s home.”). But here, the affidavits explained all\\nof the circumstances leading up to the search of the car that\\nhad been wrecked, and explained that Garay was then\\narrested for having drugs and cash on his person. These facts,\\ncoupled with the affiants’ experience and beliefs, provide a\\nreasonable basis to infer that evidence tying Garay to the\\n\\f12 UNITED STATES V. GARAY\\n\\ncriminal activity of which he was suspected might be found\\non the cell phone. Magistrate judges may, as they likely did\\nhere, draw their own reasonable inferences about where\\nevidence might be kept based on the nature of the suspected\\noffense and the nature of the evidence sought. Fannin, 817\\nF.2d at 1382; see also United States v. Lucarz, 430 F.2d 1051,\\n1055 (9th Cir. 1970).\\n\\n We owe “great deference” to magistrate judges’ probable-\\ncause findings. United States v. Krupa, 658 F.3d 1174, 1177\\n(9th Cir. 2011) (quoting United States v. Hill, 459 F.3d 966,\\n970 (9th Cir. 2006)). The district court correctly determined\\nthat the affidavits supporting both warrants in this case gave\\nrise to at least a fair probability that evidence of a crime\\nwould be found on Garay’s cell phone.\\n\\n AFFIRMED.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4438757/\", \"author_raw\": \"SCHROEDER, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"MARY M SCHROEDER"},"judge2":{"kind":"string","value":"SUSAN P GRABER"},"judge3":{"kind":"string","value":"MICHAEL H WATSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4661504/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Nahach Garay\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF AMERICA, No. 18-50054\n Plaintiff-Appellee,\n D.C. No.\n v. 2:17-cr-00188-\n RGK-1\n NAHACH MANUEL GARAY, AKA\n Nahach Guerrero, AKA Polar Bear,\n Defendant-Appellant. OPINION\n\n\n Appeal from the United States District Court\n for the Central District of California\n R. Gary Klausner, District Judge, Presiding\n\n Argued and Submitted August 13, 2019\n Pasadena, California\n\n Filed September 17, 2019\n\n Before: Mary M. Schroeder and Susan P. Graber, Circuit\n Judges, and Michael H. Watson,* District Judge.\n\n Opinion by Judge Schroeder\n\n\n\n\n *\n The Honorable Michael H. Watson, United States District Judge for\nthe Southern District of Ohio, sitting by designation.\n\f2 UNITED STATES V. GARAY\n\n SUMMARY**\n\n\n Criminal Law\n\n The panel affirmed a conviction for being a felon in\npossession of a firearm in a case in which the district court\ndenied the defendant’s motion to suppress evidence found as\na result of the search of his cell phone, seized from his rental\ncar after a high-speed chase.\n\n Under Byrd v. United States , 138 S. Ct. 1518 (2018),\nwhich clarified that Fourth Amendment standing is not\njurisdictional, the panel did not need to reach the\ngovernment’s threshold contention that the defendant lacked\nstanding to challenge the search of the phone before\nanalyzing the merits of the defendant’s Fourth Amendment\nclaims.\n\n The panel held that the district court did not err in\nconcluding that the defendant’s cell phone was lawfully\nseized as part of a valid inventory search, where there was no\nreason to conclude that the search was used to rummage for\nevidence. The panel noted that administrative errors should\nnot, on their own, invalidate inventory searches.\n\n The panel held that the district court correctly determined\nthat probable cause supported the two warrants issued to\nsearch the defendant’s cell phone. The panel explained that\naffiants seeking a warrant may state conclusions based on\ntraining and experience without having to detail that\n\n **\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. GARAY 3\n\nexperience. The panel concluded that there was a sufficient\nfactual basis for the issuing magistrate judges to conclude,\nindependently of the affiants’ beliefs, that evidence might be\nfound on the defendant’s cell phone.\n\n\n COUNSEL\n\nMichael Tanaka (argued), Los Angeles, California, for\nDefendant-Appellant.\n\nJulia L. Reese (argued), Assistant United States Attorney; L.\nAshley Aull, Chief, Criminal Division; Nicola T. Hanna,\nUnited States Attorney; United States Attorney’s Office, Los\nAngeles, California; for Plaintiff-Appellee.\n\n\n OPINION\n\nSCHROEDER, Circuit Judge:\n\n Nahach Garay appeals his conviction under 18 U.S.C.\n§ 922(g)(1) as a felon in possession of a firearm. He\nchallenges the denial of his motion to suppress evidence\nfound as a result of the search of his cell phone, seized from\nhis rental car after a high-speed chase. The phone contained\nphotographs that tied him to the firearm that was recovered\nfrom the car. The district court ruled that the phone was\nlawfully seized in an inventory search of the car and that the\nwarrants authorizing the search of the phone’s contents were\nsupported by probable cause.\n\n The government’s threshold contention on appeal is that\nGaray lacked standing to challenge the search of the phone\n\f4 UNITED STATES V. GARAY\n\nbecause he had abandoned any reasonable expectation of\nprivacy in its contents when he ran from the car. We need not\naddress this question. Under the Supreme Court’s recent\ndecision in Byrd v. United States, 138 S. Ct. 1518, 1530\n(2018), such an inquiry is not jurisdictional, and, so, we need\nnot consider it before we analyze the merits of Garay’s Fourth\nAmendment claim. Because we conclude that the searches of\nboth the car and the phone were lawful, we affirm.\n\n BACKGROUND\n\n When San Bernardino County deputy sheriffs attempted,\nin March of 2017, to stop Garay for a traffic violation, Garay,\nwith a passenger in the car, led them on a high-speed chase.\nThe chase culminated in Garay’s crashing the car into a ditch\nand attempting to flee on foot. A search of his person\nrevealed thousands of dollars in cash and quantities of four\ndifferent illegal drugs. He was placed under arrest.\n\n With the car totaled in the ditch, the officers had to\narrange to have the car towed. In preparation, they searched\nthe contents of the car, finding two loaded rifles, ammunition,\nand two cell phones, one of which was claimed by the\npassenger. The officers filled out a Vehicle Report on which\nthey listed some property (firearms), but they did not list\nother property in the “remarks” section. They booked the\nrifles, ammunition, and cell phones as evidence.\n\n To search the contents of the cell phones, state law-\nenforcement officers obtained a warrant on the strength of an\nofficer’s affidavit describing the circumstances leading up to\nthe discovery of the phones. These circumstances included\nthe drugs and cash found on Garay’s person and the affiant’s\nknowledge, based on training and experience, that individuals\n\f UNITED STATES V. GARAY 5\n\nwho possess firearms take pictures of them and communicate\nvia text messages to further their criminal activity. When the\ncase was referred for federal prosecution, a second, federal\nwarrant was issued on the basis of similar information as well\nas on the “collective experiences” of law enforcement agents\nthat felons prohibited from possessing guns use mobile\nphones to coordinate buying and selling guns.\n\n Garay contends that the warrantless seizure of the phone\nitself was unreasonable and that the affidavits supporting the\nsearch of the contents of Garay’s phone were inadequate.\n\n DISCUSSION\n\nI. The Issue of Standing\n\n The government argues that Garay abandoned any\nreasonable expectation of privacy he may have had in the\ncontents of his phone when he left it in a totaled car and tried\nto flee from the arresting officers. This, the government\nargues, is a threshold issue that prevents Garay from having\nstanding to challenge the search or seizure of the phone.\n\n The Supreme Court recently clarified in Byrd that Fourth\nAmendment standing, unlike Article III standing in the civil\ncontext, is “not a jurisdictional question and hence need not\nbe addressed before addressing other aspects of the merits of\na Fourth Amendment claim.” 138 S. Ct. at 1530. We\nconclude that the search and seizure of Garay’s cell phone\nwere both reasonable under the Fourth Amendment.\nAccordingly, we need not decide whether Garay abandoned\nall reasonable expectation of privacy in the cell phone.\n\f6 UNITED STATES V. GARAY\n\nII. The Inventory Search and the Reasonableness of the\n Seizure of the Phone\n\n Before towing or impounding a vehicle, officers may\nseize and inventory the contents of that vehicle in order to\navoid liability for missing items. See South Dakota v.\nOpperman, 428 U.S. 364, 369 (1976). If done according to\nstandardized criteria and not in “bad faith or for the sole\npurpose of investigation,” police inventory procedures satisfy\nthe Fourth Amendment. Colorado v. Bertine, 479 U.S. 367,\n372 (1987).\n\n The government correctly contends that the seizure of\nGaray’s cell phone was justified as part of an inventory\nsearch in preparation for the car’s towing. Garay does not\ndispute that the decision to tow the car was a reasonable and\ngood-faith exercise of the officers’ care-taking function;\nGaray had just been arrested and the car was totaled and lying\nin a ditch. See also Cal. Veh. Code § 22651(h)(1)\n(authorizing officers to tow car after driver is arrested). It is\nwell established that, once a vehicle has been impounded or\ntowed, police are permitted to inventory the car’s contents.\nOpperman, 428 U.S. at 369. Garay contends, however, that\nthe officers used their authority to inventory the car’s\ncontents here to unlawfully rummage for evidence. Inventory\nsearches are consistent with the Fourth Amendment only if\nthey are not used as an excuse to rummage for evidence. See\nFlorida v. Wells, 495 U.S. 1, 4 (1990) (“an inventory search\nmust not be a ruse for a general rummaging in order to\ndiscover incriminating evidence”).\n\n To support his argument that this search was pretextual,\nGaray cites the absence of any inventory sheet listing the\nproperty found inside the car, a list required under the\n\f UNITED STATES V. GARAY 7\n\nsheriff’s department’s inventory policy. As noted above, the\nofficers listed only some property in the Vehicle Report,\nthough they booked additional property as evidence. The\ndistrict court dismissed this argument, pointing out that a\ndepartment’s policies do not define constitutional rights.\nSuch policies do, however, assist courts to determine whether\nan inventory search is legitimate, as opposed to pretextual.\nSee United States v. Wanless, 882 F.2d 1459, 1463–64 (9th\nCir. 1989) (invalidating an inventory search that deviated\nfrom required procedures).\n\n In this case, we see no reason to hold that the officers\nwere rummaging for evidence. The contents of the wrecked\ncar had to be removed and safeguarded before the car was\ntowed from the site. That is the essence of an inventory\nsearch. Because the site was in effect a crime scene, the\nitems in the car were sensibly treated as evidence. The\nsearching officer complied with the department’s inventory-\nsearch policy in material respects. For instance, he obtained\nthe tow truck driver’s signature and noted the date and time\nof the driver’s arrival; he obtained a file number for the\ninventory; he checked a box on the relevant inventory form\nindicating that items of potential value were in the car before\nidentifying and booking the items recovered from the car as\n“evidence/property.”\n\n That the officer did not complete the inventory list that\nordinarily would be completed as part of a department\ninventory search is not, on its own, a material deviation from\npolicy. Other circuits have expressly recognized that the\nfailure to complete an inventory form does not invalidate an\ninventory search. See United States v. Loaiza-Marin,\n832 F.2d 867, 869 (5th Cir. 1987) (per curiam) (“failure to\ncompile the written inventory does not render the inventory\n\f8 UNITED STATES V. GARAY\n\nsearch invalid”); United States v. Trullo, 790 F.2d 205, 206\n(1st Cir. 1986) (“We will not hold that the officer’s failure,\ntechnically, to follow the inventory form procedures for\nvaluables meant it was not an inventory search.”); United\nStates v. O’Bryant, 775 F.2d 1528, 1534 (11th Cir. 1985)\n(“We also reject O’Bryant’s contention that the inventory\nsearch exception to the general prohibition against\nwarrantless searches was violated because [the officer] did\nnot prepare a complete list of the briefcase's contents.”);\nUnited States v. Richardson, 2000 WL 1273425, at *2 (4th\nCir. Sept. 5, 2000) (per curiam) (unpublished) (“[T]he failure\nto complete an inventory list does not render suspect either\nthe motive for conducting the search or the reasonableness\nthereof.”).\n\n Further, we as well as several other circuits have upheld\ninventory searches despite other comparable administrative\nerrors. See, e.g., United States v. Penn, 233 F.3d 1111,\n1115–17 (9th Cir. 2000) (inventory search lawful even\nthough officer may have allowed passenger to remove\npersonal property from the car before the search, which was\n“contrary” to “police and city policy”); see also United States\nv. Williams, 777 F.3d 1013, 1016 (8th Cir. 2015) (loose items\nof minimal value omitted from inventory list); United States\nv. Garreau, 658 F.3d 854, 857 (8th Cir. 2011) (stolen firearm\nomitted from inventory list); United States v. Cartwright,\n630 F.3d 610, 616 (7th Cir. 2010) (incomplete inventory list);\nUnited States v. Lopez, 547 F.3d 364, 371 (2d Cir. 2008)\n(officer failed to “itemize each object”).\n\n The underlying principle was perhaps best stated in\nUnited States v. Rowland, where the Eighth Circuit explained\nthat administrative errors should not, on their own, invalidate\ninventory searches: “There must be something else;\n\f UNITED STATES V. GARAY 9\n\nsomething to suggest the police raised ‘the inventory-search\nbanner in an after-the-fact attempt to justify’ a simple\ninvestigatory search for incriminating evidence.” 341 F.3d\n774, 780 (8th Cir. 2003) (quoting United States v. Marshall,\n986 F.2d 1171, 1175 (8th Cir. 1993)). The point is also\nillustrated by our recent decision in United States v. Johnson,\nin which we held that the search was not an inventory search\n“because the officers themselves explicitly admitted that they\nseized items from the car in an effort to search for evidence\nof criminal activity.” 889 F.3d 1120, 1127–28 (9th Cir. 2018)\n(per curiam).\n\n Here, by contrast, we find no reason to conclude that the\ninventory search was used to rummage for evidence. Given\nthe circumstances leading up to the search, the officers no\ndoubt expected to find evidence of criminal activity inside the\nvehicle. But that expectation would not invalidate an\notherwise reasonable inventory search. See United States v.\nBowhay, 992 F.2d 229, 231 (9th Cir. 1993) (explaining that\n“dual motives” in inventory-search context are permissible).\nThe district court did not err in concluding that Garay’s cell\nphone was lawfully seized as part of a valid inventory search.\n\nIII. Adequacy of Warrant to Search Cell Phone’s\n Contents\n\n Two magistrate judges, one state and one federal, issued\nwarrants to search the cell phone’s contents. Garay argues\nthat the affidavits contained in the warrant applications were\nnot supported by probable cause. The question before us,\ntherefore, is whether the magistrate judges had a substantial\nbasis to conclude that the warrant applications established\nprobable cause. See United States v. Celestine, 324 F.3d\n1095, 1100 (9th Cir. 2003). An affidavit in support of a\n\f10 UNITED STATES V. GARAY\n\nsearch warrant shows probable cause if, under the totality of\nthe circumstances, it reveals “a fair probability that\ncontraband or evidence of a crime will be found in a\nparticular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).\n\n The district court found the support for each warrant to be\nmore than adequate. The affidavit in support of the state\nwarrant described all the relevant circumstances. These\nincluded the high-speed chase leading up to the crash and\nGaray’s attempt to flee, followed by Garay’s arrest and the\ndiscovery of drugs and cash on his person, as well as the\ndiscovery of loaded guns, ammunition, and cell phones inside\nthe car. The affidavit also recited the affiant’s training and\nexperience, reflecting that people who possess firearms “like\nto take pictures of [those items]” with their cell phones, and\n“will also communicate via text” regarding criminal activity.\n\n When the case was later referred for federal prosecution,\nthe affidavit for the federal warrant covered the same ground\nas the state affidavit, but was even more specific in stating\nthat the affiant, based on her training and experience, as well\nas the “collective experiences” of other law enforcement\nagents, knew that felons prohibited from owning guns “often\nuse digital devices, including mobile phones, to coordinate\nbuying or selling those guns . . . to promote their possession\nof guns to others” and to contact suppliers for future\npurchases or referrals.\n\n Garay nevertheless contends that both warrants lacked\nprobable cause. He asserts that the affiants’ belief on the\nbasis of their “training and experience,” unadorned by\nsufficient supporting details, cannot properly be considered\nin establishing probable cause. He argues that, before the\naffiants’ beliefs may be taken into consideration, the affiants\n\f UNITED STATES V. GARAY 11\n\nmust detail the nature of their expertise or experience and\nhow that experience bears on the facts prompting the search.\n\n Our standards, however, are not so stringent. We have\nlong held that affiants seeking a warrant may state\nconclusions based on training and experience without having\nto detail that experience. See, e.g., United States v.\nHendershot, 614 F.2d 648, 654 (9th Cir. 1980) (finding that\naffiant’s conclusion “based on [his] experience from prior\nbank robbery investigations” was proper; emphasizing that\n“[i]t is not necessary to detail that experience to determine\nthat the conclusion is not capricious” (internal quotation\nmarks omitted)). We have also held that magistrate judges\nmay “rely on the conclusions of experienced law enforcement\nofficers regarding where evidence of a crime is likely to be\nfound.” United States v. Fannin, 817 F.2d 1379, 1382 (9th\nCir. 1987) (citing United States v. Crozier, 777 F.2d 1376,\n1380 (9th Cir. 1985)).\n\n Further, there was a sufficient factual basis for both\nmagistrate judges to conclude, independently of the affiants’\nbeliefs, that evidence might be found on Garay’s cell phone.\nGaray relies on authorities in which the warrant applications\nhad contained no factual basis from which to connect the\nplace to be searched with the evidence sought. See, e.g.,\nUnited States v. Underwood, 725 F.3d 1076, 1086 (9th Cir.\n2013) (“[T]he affidavit provides no factual basis for the\nconclusion that drug trafficking evidence would be found at\nUnderwood’s home.”). But here, the affidavits explained all\nof the circumstances leading up to the search of the car that\nhad been wrecked, and explained that Garay was then\narrested for having drugs and cash on his person. These facts,\ncoupled with the affiants’ experience and beliefs, provide a\nreasonable basis to infer that evidence tying Garay to the\n\f12 UNITED STATES V. GARAY\n\ncriminal activity of which he was suspected might be found\non the cell phone. Magistrate judges may, as they likely did\nhere, draw their own reasonable inferences about where\nevidence might be kept based on the nature of the suspected\noffense and the nature of the evidence sought. Fannin, 817\nF.2d at 1382; see also United States v. Lucarz, 430 F.2d 1051,\n1055 (9th Cir. 1970).\n\n We owe “great deference” to magistrate judges’ probable-\ncause findings. United States v. Krupa, 658 F.3d 1174, 1177\n(9th Cir. 2011) (quoting United States v. Hill, 459 F.3d 966,\n970 (9th Cir. 2006)). The district court correctly determined\nthat the affidavits supporting both warrants in this case gave\nrise to at least a fair probability that evidence of a crime\nwould be found on Garay’s cell phone.\n\n AFFIRMED.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Nahach Garay\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\n UNITED STATES OF AMERICA, No. 18-50054\\n Plaintiff-Appellee,\\n D.C. No.\\n v. 2:17-cr-00188-\\n RGK-1\\n NAHACH MANUEL GARAY, AKA\\n Nahach Guerrero, AKA Polar Bear,\\n Defendant-Appellant. OPINION\\n\\n\\n Appeal from the United States District Court\\n for the Central District of California\\n R. Gary Klausner, District Judge, Presiding\\n\\n Argued and Submitted August 13, 2019\\n Pasadena, California\\n\\n Filed September 17, 2019\\n\\n Before: Mary M. Schroeder and Susan P. Graber, Circuit\\n Judges, and Michael H. Watson,* District Judge.\\n\\n Opinion by Judge Schroeder\\n\\n\\n\\n\\n *\\n The Honorable Michael H. Watson, United States District Judge for\\nthe Southern District of Ohio, sitting by designation.\\n\\f2 UNITED STATES V. GARAY\\n\\n SUMMARY**\\n\\n\\n Criminal Law\\n\\n The panel affirmed a conviction for being a felon in\\npossession of a firearm in a case in which the district court\\ndenied the defendant’s motion to suppress evidence found as\\na result of the search of his cell phone, seized from his rental\\ncar after a high-speed chase.\\n\\n Under Byrd v. United States , 138 S. Ct. 1518 (2018),\\nwhich clarified that Fourth Amendment standing is not\\njurisdictional, the panel did not need to reach the\\ngovernment’s threshold contention that the defendant lacked\\nstanding to challenge the search of the phone before\\nanalyzing the merits of the defendant’s Fourth Amendment\\nclaims.\\n\\n The panel held that the district court did not err in\\nconcluding that the defendant’s cell phone was lawfully\\nseized as part of a valid inventory search, where there was no\\nreason to conclude that the search was used to rummage for\\nevidence. The panel noted that administrative errors should\\nnot, on their own, invalidate inventory searches.\\n\\n The panel held that the district court correctly determined\\nthat probable cause supported the two warrants issued to\\nsearch the defendant’s cell phone. The panel explained that\\naffiants seeking a warrant may state conclusions based on\\ntraining and experience without having to detail that\\n\\n **\\n This summary constitutes no part of the opinion of the court. It has\\nbeen prepared by court staff for the convenience of the reader.\\n\\f UNITED STATES V. GARAY 3\\n\\nexperience. The panel concluded that there was a sufficient\\nfactual basis for the issuing magistrate judges to conclude,\\nindependently of the affiants’ beliefs, that evidence might be\\nfound on the defendant’s cell phone.\\n\\n\\n COUNSEL\\n\\nMichael Tanaka (argued), Los Angeles, California, for\\nDefendant-Appellant.\\n\\nJulia L. Reese (argued), Assistant United States Attorney; L.\\nAshley Aull, Chief, Criminal Division; Nicola T. Hanna,\\nUnited States Attorney; United States Attorney’s Office, Los\\nAngeles, California; for Plaintiff-Appellee.\\n\\n\\n OPINION\\n\\nSCHROEDER, Circuit Judge:\\n\\n Nahach Garay appeals his conviction under 18 U.S.C.\\n§ 922(g)(1) as a felon in possession of a firearm. He\\nchallenges the denial of his motion to suppress evidence\\nfound as a result of the search of his cell phone, seized from\\nhis rental car after a high-speed chase. The phone contained\\nphotographs that tied him to the firearm that was recovered\\nfrom the car. The district court ruled that the phone was\\nlawfully seized in an inventory search of the car and that the\\nwarrants authorizing the search of the phone’s contents were\\nsupported by probable cause.\\n\\n The government’s threshold contention on appeal is that\\nGaray lacked standing to challenge the search of the phone\\n\\f4 UNITED STATES V. GARAY\\n\\nbecause he had abandoned any reasonable expectation of\\nprivacy in its contents when he ran from the car. We need not\\naddress this question. Under the Supreme Court’s recent\\ndecision in Byrd v. United States, 138 S. Ct. 1518, 1530\\n(2018), such an inquiry is not jurisdictional, and, so, we need\\nnot consider it before we analyze the merits of Garay’s Fourth\\nAmendment claim. Because we conclude that the searches of\\nboth the car and the phone were lawful, we affirm.\\n\\n BACKGROUND\\n\\n When San Bernardino County deputy sheriffs attempted,\\nin March of 2017, to stop Garay for a traffic violation, Garay,\\nwith a passenger in the car, led them on a high-speed chase.\\nThe chase culminated in Garay’s crashing the car into a ditch\\nand attempting to flee on foot. A search of his person\\nrevealed thousands of dollars in cash and quantities of four\\ndifferent illegal drugs. He was placed under arrest.\\n\\n With the car totaled in the ditch, the officers had to\\narrange to have the car towed. In preparation, they searched\\nthe contents of the car, finding two loaded rifles, ammunition,\\nand two cell phones, one of which was claimed by the\\npassenger. The officers filled out a Vehicle Report on which\\nthey listed some property (firearms), but they did not list\\nother property in the “remarks” section. They booked the\\nrifles, ammunition, and cell phones as evidence.\\n\\n To search the contents of the cell phones, state law-\\nenforcement officers obtained a warrant on the strength of an\\nofficer’s affidavit describing the circumstances leading up to\\nthe discovery of the phones. These circumstances included\\nthe drugs and cash found on Garay’s person and the affiant’s\\nknowledge, based on training and experience, that individuals\\n\\f UNITED STATES V. GARAY 5\\n\\nwho possess firearms take pictures of them and communicate\\nvia text messages to further their criminal activity. When the\\ncase was referred for federal prosecution, a second, federal\\nwarrant was issued on the basis of similar information as well\\nas on the “collective experiences” of law enforcement agents\\nthat felons prohibited from possessing guns use mobile\\nphones to coordinate buying and selling guns.\\n\\n Garay contends that the warrantless seizure of the phone\\nitself was unreasonable and that the affidavits supporting the\\nsearch of the contents of Garay’s phone were inadequate.\\n\\n DISCUSSION\\n\\nI. The Issue of Standing\\n\\n The government argues that Garay abandoned any\\nreasonable expectation of privacy he may have had in the\\ncontents of his phone when he left it in a totaled car and tried\\nto flee from the arresting officers. This, the government\\nargues, is a threshold issue that prevents Garay from having\\nstanding to challenge the search or seizure of the phone.\\n\\n The Supreme Court recently clarified in Byrd that Fourth\\nAmendment standing, unlike Article III standing in the civil\\ncontext, is “not a jurisdictional question and hence need not\\nbe addressed before addressing other aspects of the merits of\\na Fourth Amendment claim.” 138 S. Ct. at 1530. We\\nconclude that the search and seizure of Garay’s cell phone\\nwere both reasonable under the Fourth Amendment.\\nAccordingly, we need not decide whether Garay abandoned\\nall reasonable expectation of privacy in the cell phone.\\n\\f6 UNITED STATES V. GARAY\\n\\nII. The Inventory Search and the Reasonableness of the\\n Seizure of the Phone\\n\\n Before towing or impounding a vehicle, officers may\\nseize and inventory the contents of that vehicle in order to\\navoid liability for missing items. See South Dakota v.\\nOpperman, 428 U.S. 364, 369 (1976). If done according to\\nstandardized criteria and not in “bad faith or for the sole\\npurpose of investigation,” police inventory procedures satisfy\\nthe Fourth Amendment. Colorado v. Bertine, 479 U.S. 367,\\n372 (1987).\\n\\n The government correctly contends that the seizure of\\nGaray’s cell phone was justified as part of an inventory\\nsearch in preparation for the car’s towing. Garay does not\\ndispute that the decision to tow the car was a reasonable and\\ngood-faith exercise of the officers’ care-taking function;\\nGaray had just been arrested and the car was totaled and lying\\nin a ditch. See also Cal. Veh. Code § 22651(h)(1)\\n(authorizing officers to tow car after driver is arrested). It is\\nwell established that, once a vehicle has been impounded or\\ntowed, police are permitted to inventory the car’s contents.\\nOpperman, 428 U.S. at 369. Garay contends, however, that\\nthe officers used their authority to inventory the car’s\\ncontents here to unlawfully rummage for evidence. Inventory\\nsearches are consistent with the Fourth Amendment only if\\nthey are not used as an excuse to rummage for evidence. See\\nFlorida v. Wells, 495 U.S. 1, 4 (1990) (“an inventory search\\nmust not be a ruse for a general rummaging in order to\\ndiscover incriminating evidence”).\\n\\n To support his argument that this search was pretextual,\\nGaray cites the absence of any inventory sheet listing the\\nproperty found inside the car, a list required under the\\n\\f UNITED STATES V. GARAY 7\\n\\nsheriff’s department’s inventory policy. As noted above, the\\nofficers listed only some property in the Vehicle Report,\\nthough they booked additional property as evidence. The\\ndistrict court dismissed this argument, pointing out that a\\ndepartment’s policies do not define constitutional rights.\\nSuch policies do, however, assist courts to determine whether\\nan inventory search is legitimate, as opposed to pretextual.\\nSee United States v. Wanless, 882 F.2d 1459, 1463–64 (9th\\nCir. 1989) (invalidating an inventory search that deviated\\nfrom required procedures).\\n\\n In this case, we see no reason to hold that the officers\\nwere rummaging for evidence. The contents of the wrecked\\ncar had to be removed and safeguarded before the car was\\ntowed from the site. That is the essence of an inventory\\nsearch. Because the site was in effect a crime scene, the\\nitems in the car were sensibly treated as evidence. The\\nsearching officer complied with the department’s inventory-\\nsearch policy in material respects. For instance, he obtained\\nthe tow truck driver’s signature and noted the date and time\\nof the driver’s arrival; he obtained a file number for the\\ninventory; he checked a box on the relevant inventory form\\nindicating that items of potential value were in the car before\\nidentifying and booking the items recovered from the car as\\n“evidence/property.”\\n\\n That the officer did not complete the inventory list that\\nordinarily would be completed as part of a department\\ninventory search is not, on its own, a material deviation from\\npolicy. Other circuits have expressly recognized that the\\nfailure to complete an inventory form does not invalidate an\\ninventory search. See United States v. Loaiza-Marin,\\n832 F.2d 867, 869 (5th Cir. 1987) (per curiam) (“failure to\\ncompile the written inventory does not render the inventory\\n\\f8 UNITED STATES V. GARAY\\n\\nsearch invalid”); United States v. Trullo, 790 F.2d 205, 206\\n(1st Cir. 1986) (“We will not hold that the officer’s failure,\\ntechnically, to follow the inventory form procedures for\\nvaluables meant it was not an inventory search.”); United\\nStates v. O’Bryant, 775 F.2d 1528, 1534 (11th Cir. 1985)\\n(“We also reject O’Bryant’s contention that the inventory\\nsearch exception to the general prohibition against\\nwarrantless searches was violated because [the officer] did\\nnot prepare a complete list of the briefcase's contents.”);\\nUnited States v. Richardson, 2000 WL 1273425, at *2 (4th\\nCir. Sept. 5, 2000) (per curiam) (unpublished) (“[T]he failure\\nto complete an inventory list does not render suspect either\\nthe motive for conducting the search or the reasonableness\\nthereof.”).\\n\\n Further, we as well as several other circuits have upheld\\ninventory searches despite other comparable administrative\\nerrors. See, e.g., United States v. Penn, 233 F.3d 1111,\\n1115–17 (9th Cir. 2000) (inventory search lawful even\\nthough officer may have allowed passenger to remove\\npersonal property from the car before the search, which was\\n“contrary” to “police and city policy”); see also United States\\nv. Williams, 777 F.3d 1013, 1016 (8th Cir. 2015) (loose items\\nof minimal value omitted from inventory list); United States\\nv. Garreau, 658 F.3d 854, 857 (8th Cir. 2011) (stolen firearm\\nomitted from inventory list); United States v. Cartwright,\\n630 F.3d 610, 616 (7th Cir. 2010) (incomplete inventory list);\\nUnited States v. Lopez, 547 F.3d 364, 371 (2d Cir. 2008)\\n(officer failed to “itemize each object”).\\n\\n The underlying principle was perhaps best stated in\\nUnited States v. Rowland, where the Eighth Circuit explained\\nthat administrative errors should not, on their own, invalidate\\ninventory searches: “There must be something else;\\n\\f UNITED STATES V. GARAY 9\\n\\nsomething to suggest the police raised ‘the inventory-search\\nbanner in an after-the-fact attempt to justify’ a simple\\ninvestigatory search for incriminating evidence.” 341 F.3d\\n774, 780 (8th Cir. 2003) (quoting United States v. Marshall,\\n986 F.2d 1171, 1175 (8th Cir. 1993)). The point is also\\nillustrated by our recent decision in United States v. Johnson,\\nin which we held that the search was not an inventory search\\n“because the officers themselves explicitly admitted that they\\nseized items from the car in an effort to search for evidence\\nof criminal activity.” 889 F.3d 1120, 1127–28 (9th Cir. 2018)\\n(per curiam).\\n\\n Here, by contrast, we find no reason to conclude that the\\ninventory search was used to rummage for evidence. Given\\nthe circumstances leading up to the search, the officers no\\ndoubt expected to find evidence of criminal activity inside the\\nvehicle. But that expectation would not invalidate an\\notherwise reasonable inventory search. See United States v.\\nBowhay, 992 F.2d 229, 231 (9th Cir. 1993) (explaining that\\n“dual motives” in inventory-search context are permissible).\\nThe district court did not err in concluding that Garay’s cell\\nphone was lawfully seized as part of a valid inventory search.\\n\\nIII. Adequacy of Warrant to Search Cell Phone’s\\n Contents\\n\\n Two magistrate judges, one state and one federal, issued\\nwarrants to search the cell phone’s contents. Garay argues\\nthat the affidavits contained in the warrant applications were\\nnot supported by probable cause. The question before us,\\ntherefore, is whether the magistrate judges had a substantial\\nbasis to conclude that the warrant applications established\\nprobable cause. See United States v. Celestine, 324 F.3d\\n1095, 1100 (9th Cir. 2003). An affidavit in support of a\\n\\f10 UNITED STATES V. GARAY\\n\\nsearch warrant shows probable cause if, under the totality of\\nthe circumstances, it reveals “a fair probability that\\ncontraband or evidence of a crime will be found in a\\nparticular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).\\n\\n The district court found the support for each warrant to be\\nmore than adequate. The affidavit in support of the state\\nwarrant described all the relevant circumstances. These\\nincluded the high-speed chase leading up to the crash and\\nGaray’s attempt to flee, followed by Garay’s arrest and the\\ndiscovery of drugs and cash on his person, as well as the\\ndiscovery of loaded guns, ammunition, and cell phones inside\\nthe car. The affidavit also recited the affiant’s training and\\nexperience, reflecting that people who possess firearms “like\\nto take pictures of [those items]” with their cell phones, and\\n“will also communicate via text” regarding criminal activity.\\n\\n When the case was later referred for federal prosecution,\\nthe affidavit for the federal warrant covered the same ground\\nas the state affidavit, but was even more specific in stating\\nthat the affiant, based on her training and experience, as well\\nas the “collective experiences” of other law enforcement\\nagents, knew that felons prohibited from owning guns “often\\nuse digital devices, including mobile phones, to coordinate\\nbuying or selling those guns . . . to promote their possession\\nof guns to others” and to contact suppliers for future\\npurchases or referrals.\\n\\n Garay nevertheless contends that both warrants lacked\\nprobable cause. He asserts that the affiants’ belief on the\\nbasis of their “training and experience,” unadorned by\\nsufficient supporting details, cannot properly be considered\\nin establishing probable cause. He argues that, before the\\naffiants’ beliefs may be taken into consideration, the affiants\\n\\f UNITED STATES V. GARAY 11\\n\\nmust detail the nature of their expertise or experience and\\nhow that experience bears on the facts prompting the search.\\n\\n Our standards, however, are not so stringent. We have\\nlong held that affiants seeking a warrant may state\\nconclusions based on training and experience without having\\nto detail that experience. See, e.g., United States v.\\nHendershot, 614 F.2d 648, 654 (9th Cir. 1980) (finding that\\naffiant’s conclusion “based on [his] experience from prior\\nbank robbery investigations” was proper; emphasizing that\\n“[i]t is not necessary to detail that experience to determine\\nthat the conclusion is not capricious” (internal quotation\\nmarks omitted)). We have also held that magistrate judges\\nmay “rely on the conclusions of experienced law enforcement\\nofficers regarding where evidence of a crime is likely to be\\nfound.” United States v. Fannin, 817 F.2d 1379, 1382 (9th\\nCir. 1987) (citing United States v. Crozier, 777 F.2d 1376,\\n1380 (9th Cir. 1985)).\\n\\n Further, there was a sufficient factual basis for both\\nmagistrate judges to conclude, independently of the affiants’\\nbeliefs, that evidence might be found on Garay’s cell phone.\\nGaray relies on authorities in which the warrant applications\\nhad contained no factual basis from which to connect the\\nplace to be searched with the evidence sought. See, e.g.,\\nUnited States v. Underwood, 725 F.3d 1076, 1086 (9th Cir.\\n2013) (“[T]he affidavit provides no factual basis for the\\nconclusion that drug trafficking evidence would be found at\\nUnderwood’s home.”). But here, the affidavits explained all\\nof the circumstances leading up to the search of the car that\\nhad been wrecked, and explained that Garay was then\\narrested for having drugs and cash on his person. These facts,\\ncoupled with the affiants’ experience and beliefs, provide a\\nreasonable basis to infer that evidence tying Garay to the\\n\\f12 UNITED STATES V. GARAY\\n\\ncriminal activity of which he was suspected might be found\\non the cell phone. Magistrate judges may, as they likely did\\nhere, draw their own reasonable inferences about where\\nevidence might be kept based on the nature of the suspected\\noffense and the nature of the evidence sought. Fannin, 817\\nF.2d at 1382; see also United States v. Lucarz, 430 F.2d 1051,\\n1055 (9th Cir. 1970).\\n\\n We owe “great deference” to magistrate judges’ probable-\\ncause findings. United States v. Krupa, 658 F.3d 1174, 1177\\n(9th Cir. 2011) (quoting United States v. Hill, 459 F.3d 966,\\n970 (9th Cir. 2006)). The district court correctly determined\\nthat the affidavits supporting both warrants in this case gave\\nrise to at least a fair probability that evidence of a crime\\nwould be found on Garay’s cell phone.\\n\\n AFFIRMED.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4464,"cells":{"id":{"kind":"number","value":4661505,"string":"4,661,505"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Royal Wulff Ventures LLC v. Primero Mining Corp."},"decision_date":{"kind":"string","value":"2019-09-17"},"docket_number":{"kind":"string","value":"17-56367"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Kim McLane Wardlaw and Mark J. Bennett, Circuit Judges, and William K. Sessions III, * District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"WARDLAW, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nROYAL WULFF VENTURES LLC, No. 17-56367\\nLead Plaintiff; ROBERT E. COOK, as\\nTrustee for the Robert E. Cook and D.C. No.\\nPaula J. Brooks Living Trust Under 2:16-cv-01034-\\nAn Agreement Dated 12/30/1998. BRO-RAO\\nLead Plaintiff,\\n Plaintiffs-Appellants,\\n OPINION\\n v.\\n\\nPRIMERO MINING CORP.; JOSEPH F.\\nCONWAY; DAVID BLAIKLOCK;\\nWENDY KAUFMAN; WADE NESMITH;\\nDAVID DEMERS; GRANT EDEY; BRAD\\nMARCHANT; ROBERT QUARTERMAIN;\\nMICHAEL RILEY; ROHAN HAZELTON;\\nTIMO JAURISTO; EDUARDO LUNA,\\n Defendants-Appellees.\\n\\n Appeal from the United States District Court\\n for the Central District of California\\n Beverly Reid O’Connell, District Judge, Presiding\\n\\n Argued and Submitted March 4, 2019\\n Pasadena, California\\n\\n Filed September 17, 2019\\n\\n2 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\n Before: Kim McLane Wardlaw and Mark J. Bennett,\\n Circuit Judges, and William K. Sessions III, *\\n District Judge.\\n\\n Opinion by Judge Wardlaw;\\n Dissent by Judge Bennett\\n\\n\\n SUMMARY **\\n\\n\\n Securities Fraud / Act of State Doctrine\\n\\n The panel affirmed the district court’s dismissal of a\\nsecurities fraud action as barred by the act of state doctrine\\nbecause plaintiffs’ claims under the Securities Exchange Act\\nof 1934 would require a United States court to pass judgment\\non the validity of a 2012 ruling by the Mexican tax authority.\\n\\n Plaintiffs alleged that defendants failed to disclose legal\\ndeficiencies in the tax ruling and sold shares knowing those\\ndeficiencies existed. After a change in government in\\nMexico, a challenge to the ruling was filed, but it remained\\nvalid under Mexican law.\\n\\n The act of state doctrine bars suit where there is an\\nofficial act of a foreign state performed within its own\\nterritory and the relief sought or the defenses interposed in\\nthe action would require a court in the United States to\\n\\n *\\n The Honorable William K. Sessions III, United States District\\nJudge for the District of Vermont, sitting by designation.\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 3\\n\\ndeclare invalid the foreign sovereign’s official act. The\\npanel held that plaintiffs’ claims would require a United\\nStates court to determine whether the Mexican tax\\nauthority’s ruling was properly issued under Mexican law.\\nTo determine whether defendants misled investors with an\\nintent to deceive, a court would have to decide whether, and\\nto what extent, the ruling complied with Mexico’s Income\\nTax Law, as well as various other Mexican laws governing\\nthe ethical obligations of public servants in Mexico.\\nAgreeing with other circuits, the panel held that the district\\ncourt was not required to consider other factors, known as\\nthe Sabbatino factors. Further, those factors would not have\\nweighed against application of the act of state doctrine. In\\nsum, the mandatory elements for applying the act of state\\ndoctrine were satisfied, and the policies underlying the\\ndoctrine weighed in favor of applying it to bar plaintiffs’\\nclaims.\\n\\n Dissenting, Judge Bennett wrote that the majority\\nmisapplied the act of state doctrine, and he believed that\\ndefendants’ statements were materially false or misleading.\\nJudge Bennett wrote that, to find for plaintiffs, a court would\\nonly need to determine whether, at the time the defendants\\nmade the alleged misrepresentations, they knew that there\\nwas a real risk that the Mexican government would nullify\\nthe tax ruling—not whether the ruling was actually invalid.\\nJudge Bennett would reverse the district court’s rulings that\\nthe act of state doctrine barred plaintiffs’ action and that\\nplaintiffs failed to adequately plead any materially false or\\nmisleading statements.\\n\\n4 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\n COUNSEL\\n\\nRichard W. Gonnello (argued), Katherine M. Lenahan, and\\nMegan M. Sullivan, Faruqi & Farugi LLP, New York, New\\nYork, for Plaintiffs-Appellants.\\n\\nDaniel M. Perry (argued) and James D. Whooley, Milbank\\nTweed Hadley & McCloy LLP, Los Angeles, California, for\\nDefendants-Appellees.\\n\\n\\n OPINION\\n\\nWARDLAW, Circuit Judge:\\n\\n We have long recognized that the courts of one country\\nwill not sit in judgment of the acts of a foreign sovereign\\ncommitted within its own territory. The act of state doctrine\\nlimits judicial interference in foreign relations by precluding\\nadjudication of the sovereign acts of other nations in United\\nStates courts. Because Plaintiffs’ claims under the Securities\\nExchange Act of 1934 would require a United States court\\nto pass judgment on the validity of a 2012 ruling by the\\nUnited Mexican States’ (Mexico) tax authority, the Servicio\\nde Administraciόn Tributaria, they are barred by the act of\\nstate doctrine. We therefore affirm the district court’s\\ndismissal of Plaintiffs’ putative class action complaint.\\n\\n I.\\n\\n Plaintiffs Royal Wulff Ventures LLC and Robert E.\\nCook, as trustee of the Robert E. Cook and Paula J. Brooks\\nLiving Trust Under An Agreement Dated 12/30/1988\\n(collectively Plaintiffs), filed a putative class action in the\\nCentral District of California, alleging violations of the\\nSecurities Exchange Act of 1934 (Exchange Act) against\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 5\\n\\nPrimero Mining Corporation (Primero) and twelve other\\nnamed defendants.\\n\\n According to the operative complaint, Primero is a\\nCanadian mining company whose principal asset at the\\nbeginning of the class period (October 5, 2012 to February\\n3, 2016) was the San Dimas gold-silver mine in Tayoltita,\\nDurango, Mexico. The San Dimas mine “has a large silver\\nreserve [that] can be mined at a relatively low cost,” and was\\npreviously owned and operated by two companies that are\\nnot parties to the present action: Wheaton River Minerals\\nLtd. and Goldcorp Inc. After Primero purchased the San\\nDimas mine from Goldcorp Inc. in August 2010 for\\n$510 million, Primero’s Mexican subsidiary, Primero\\nEmpresa Minera, S.A. de C.V. (PEM) owned and operated\\nthe San Dimas mine. Primero also acquired a separate\\nsubsidiary from Goldcorp Inc., which it renamed Silver\\nTrading Barbados.\\n\\n In connection with the August 2010 purchase of the San\\nDimas mine, Primero also assumed the obligations of two\\nseparate amended contracts: the Internal Silver Purchase\\nAgreement 2004 (Internal SPA) and External Silver\\nPurchase Agreement 2004 (External SPA). As a result, PEM\\nwas contractually bound to sell to Silver Trading Barbados,\\nanother Primero subsidiary, “the first 3.5 million ounces per\\nyear of silver produced by the San Dimas mine, plus 50% of\\nthe excess silver above this amount” at the market rate per\\nounce of silver (Spot Price) for the first four years after\\nPrimero acquired the San Dimas mine. Silver Trading\\nBarbados, in turn, was bound by these contracts to “sell that\\nsilver to [unaffiliated Silver Wheaton (Caymans) Ltd.] at the\\nlesser of $4.04 per ounce (adjusted by 1% per year) and Spot\\nPrices.” Primero also agreed that after the first four years, it\\nwould sell “the first 6 million ounces per year of silver\\n\\n6 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\nproduced by the San Dimas mine, plus 50% of the excess\\nsilver above this amount,” to Silver Wheaton (Caymans)\\nLtd., “at the lesser of $4.20 per ounce (adjusted by 1% per\\nyear) and Spot Prices for the life of the mine.” During this\\nperiod, PEM “computed income taxes in Mexico based on\\nselling all silver produced at the San Dimas mine to [Silver\\nTrading Barbados] at Spot Prices as provided in the Internal\\nSPA.” Thus, while Primero was required to sell the silver to\\nSilver Wheaton (Caymans) Ltd. at around $4 per ounce, it\\nwas required under Mexican law to pay taxes at the\\nsignificantly higher Spot Prices at which PEM sold the silver\\nto its sister subsidiary. The complaint alleges that Mexico\\nthen allowed six transfer pricing methods for transactions\\nwith non-resident related parties, which PEM was required\\nto follow with respect to sales by PEM to Silver Trading\\nBarbados under Mexico’s Income Tax Law.\\n\\n During the existence of these contracts the Spot Price per\\nounce of silver began to rise. At the outset of the\\nagreements, the price was around $6.47 per ounce, but by\\nMarch 2011, the Spot Price of silver had increased to nearly\\n$35 per ounce. The Internal SPA and External SPA\\nagreements thus led to a significant tax burden for Primero:\\nin the first quarter of 2011, for instance, Primero “recorded\\na net loss of $7.895 million after paying $12.9 million in\\nincome taxes on pre-tax income of just $5.05 million.”\\n\\n Plaintiffs allege that Primero devised a tax evasion\\nscheme to reduce this significant tax liability. This alleged\\nscheme involved two steps. First, Primero restructured its\\ncompany and amended the Internal SPA “so that the transfer\\nprice (i.e., the sale price) from PEM to [its sister subsidiary,\\nSilver Trading Barbados] was no longer the significantly\\nhigher Spot Price of silver, but rather the approximately $4\\nper ounce [unaffiliated Silver Wheaton (Caymans) Ltd.]\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 7\\n\\nPurchase Price.” And second, on October 17, 2011, a few\\ndays after amending the Internal SPA, Primero submitted an\\n“advance pricing agreement” (APA) application to Mexico’s\\ntax authority, the Servicio de Administraciόn Tributaria\\n(SAT), seeking approval of its new transfer pricing\\nmethodology resulting from its amendment to the Internal\\nSPA.\\n\\n According to the operative complaint, an APA is a\\n“prospective agreement regarding the taxpayer’s transfer\\nprices” through which “taxpayers [in Mexico can] avoid\\nfuture disputes over transfer pricing.” “APA Rulings are\\nvalid for five years, spanning the fiscal year in which they\\nare acquired, the immediately preceding year, and the\\nfollowing three fiscal years.” If an APA Ruling is not\\nproperly grounded in law or fact, “it can be retroactively\\nannulled by Mexico’s Tax Court through a proceeding\\ninitiated by the SAT, known as a juicio de lesividad.”\\n\\n The operative complaint also alleges that “APAs are\\nhandled exclusively by the SAT’s Transfer Pricing Audit\\nAdministration,” and that “[u]nder Mexican law, the head of\\nthe Transfer Pricing Audit Administration, known as the\\nCentral Administrator for Transfer Pricing Audits, is one of\\na few people in the Transfer Pricing Administration who\\nmay decide [APAs] and in any event is in charge of the\\nremaining few [people] who can [decide APAs].”\\n\\n As part of Primero’s APA application, the company\\nhired an attorney named Christian Natera, whose firm,\\nNatera Consultores, S.C., specialized in transfer pricing. At\\nthe time, Christian Natera’s brother, Luis Natera, served as\\nthe Central Administrator for Transfer Pricing Audits. In\\nthis position, Christian Natera’s brother was “one of a few\\npeople in the Transfer Pricing Administration who [could]\\ndecide [APAs] and in any event [was] in charge of the\\n\\n8 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\nremaining few [people] who [could decide APAs].”\\nThrough its APA application, Primero allegedly sought\\napproval of a transfer pricing methodology known as the\\n“comparable uncontrolled price” or “CUP” method, which\\nwould allow it to pay taxes based on the approximately $4\\nper ounce unaffiliated Silver Wheaton (Caymans) Ltd.\\nPurchase Price for silver extracted from the San Dimas mine,\\nrather than the Spot Price. Plaintiffs allege that the CUP\\nmethod is one of the six Mexican-approved transfer pricing\\nmethods; however, they also contend that Primero’s APA, as\\nactually approved, failed to comply with the CUP method.\\n\\n On October 5, 2012, Primero issued a press release\\nannouncing that PEM “ha[d] received a positive ruling from\\nthe Mexican tax authorities . . . .” The release described the\\nruling: “The ruling confirms that [PEM] appropriately\\nrecords revenue and taxes from sales under the silver\\npurchase agreement at realized prices rather than spot prices\\neffective from August 6, 2010.” Thus, under the ruling, the\\nMexican tax authority allowed PEM to pay taxes based on\\nthe Silver Wheaton (Caymans) Ltd. Purchase Price, rather\\nthan the Spot Price. According to Plaintiffs, this\\nannouncement “shocked the markets,” and resulted in\\nPrimero’s stock increasing by 36%, closing at $7.37 per\\nshare that same day.\\n\\n Following this positive ruling by the SAT, Primero made\\na number of public statements that Plaintiffs allege were\\nmisleading in violation of U.S. securities laws. The first set\\nof statements Plaintiffs identify concerns the effect that the\\nSAT’s 2012 APA Ruling would have on Primero’s cash flow\\nand tax position. While Plaintiffs catalogue a significant\\nnumber of these statements by Primero in their complaint,\\nthe district court found the following statements\\nrepresentative:\\n\\nROYAL WULFF VENTURES V. PRIMERO MINING 9\\n\\n(1) Primero’s October 5, 2012 press release:\\n “Primero Mining Corp. . . . announced\\n today that [PEM] has received a positive\\n ruling from the Mexican tax authorities\\n (Servicio de Administracion Tributaria)\\n on its Advance Pricing Agreement\\n (“APA”) filing made in October 2011.\\n The ruling confirms that [PEM]\\n appropriately records revenues and taxes\\n from sales under the silver purchase\\n agreement at realized prices rather than\\n spot prices effective from August 6,\\n 2010. Under Mexican tax law, an APA\\n ruling is generally applicable for up to a\\n five year period. For Primero this applies\\n to the fiscal years 2010 to 2014.\\n Assuming the Company continues to sell\\n its silver from its San Dimas mine on the\\n same terms and there are no changes in\\n the application of Mexican tax laws\\n relative to the APA ruling, the Company\\n expects to pay taxes on realized prices for\\n the life of the San Dimas mine.”\\n\\n(2) Defendant Conway: “We had a\\n significant tax burden, which we have\\n just recently got cleared of, but more\\n importantly I think as well now that that\\n is done, what else are we doing?”\\n\\n(3) Primero’s February 13, 2014 Form 6-K:\\n “The Company has taken the position that\\n if the Mexican tax laws relative to the\\n APA ruling do not change and the\\n Company does not change the structure\\n\\n10 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\n of the silver purchase agreement, the\\n ability of the Company to continue to pay\\n taxes in Mexico based on realized prices\\n of silver will continue for the life of the\\n San Dimas mine. Should this judgment\\n change, there would be a material change\\n in both the income and deferred tax\\n position recognized by the Company.”\\n\\n Plaintiffs also allege that Primero made various false and\\nmisleading public statements representing that its quarterly\\nand annual financial statements were “prepared in\\naccordance with International Financial Reporting Standards\\nas issued by the International Accounting Standards Board,\\nand reflect management’s best estimates and judgment based\\non information currently available.” In addition to making\\nthese statements, Primero allegedly used its newly generated\\nwealth to acquire two companies, Cerro Resources NL and\\nBrigus Gold Corp., selling 41,340,664 of its own shares in\\nthe process.\\n\\n But, according to Plaintiffs, several legal deficiencies in\\nthe SAT’s 2012 APA Ruling were confirmed after a new\\ngovernment administration came to power in Mexico. The\\nnew government, led by President Enrique Peña Nieto and\\nmembers of the Institutional Revolutionary Party, began to\\ncrack down on suspected tax avoidance schemes. Plaintiffs\\nallege that by November 2013, Luis Natera had been found\\nadministratively liable for failing to recuse himself from\\nPrimero’s APA application, and was temporarily suspended\\nfrom working in the public sector. Plaintiffs also allege that\\nin August 2015, the SAT filed a juicio de lesividad against\\nPEM seeking to retroactively nullify the 2012 APA Ruling.\\nWhen Primero issued a press release in February 2016\\nannouncing that the SAT had served it with a juicio de\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 11\\n\\nlesividad challenging the 2012 APA Ruling, Primero’s\\nshares fell “$0.74 per share, or over 28%, to close at $1.89\\nper share on February 4, 2016.” However, although a juicio\\nde lesividad was filed, its contents, and the reasons for which\\nit was filed, are not public. Moreover, Plaintiffs do not\\ncontest that the 2012 APA Ruling remains valid under\\nMexican law.\\n\\n Although Plaintiffs concede that the contents of the\\njuicio de lesividad and the reasons for which it was filed are\\nnot public, Plaintiffs allege “[u]pon information and belief\\n. . . that the juicio de lesividad was filed for the following\\nreasons: (i) Luis Natera improperly failed to recuse himself\\nfrom Primero’s APA application given that his brother,\\nChristian Natera, was an authorized representative of\\n[Primero;] (ii) the APA Ruling approved a transfer pricing\\nmethodology other than the CUP methodologies that were\\nproposed by Primero[;] (iii) the APA Ruling did not conduct\\nthe requisite comparison of the factors set forth in Article\\n215 of [Mexico’s Income Tax Law] that are used to\\ndetermine whether a transaction complies with the [arms\\nlength principle;] and (iv) Primero’s proposed CUP\\nmethodologies were flawed anyway because the transaction\\nthat Primero attempted to use as its comparable independent\\ntransaction . . . was actually a related party transaction and\\nwas therefore an inappropriate comparison transaction . . . .”\\n\\n Plaintiffs allege that in failing to disclose these alleged\\nlegal deficiencies in the 2012 APA Ruling, and in selling\\nPrimero shares knowing these legal deficiencies existed,\\nPrimero violated Rule 10b-5 and sections 10(b), 20A of the\\nExchange Act. Plaintiffs also allege violations of Rule 10b-\\n5 and sections 10(b), 20(a) of the Exchange Act against\\nvarious “Officer Defendants,” as well as violations of\\n\\n12 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\nsection 20(a) of the Exchange Act against various “Director\\nDefendants” and Defendant Joseph Conway.\\n\\n Primero moved to dismiss the Plaintiffs’ complaint\\nbased on the act of state doctrine and failure to state a claim.\\nThe district court dismissed the action as barred by the act of\\nstate doctrine, and ruled in the alternative that Plaintiffs had\\nfailed to adequately plead any materially false or misleading\\nstatements. Plaintiffs timely appeal.\\n\\n II.\\n\\n “[W]e review the district court’s decision concerning the\\nact of state doctrine de novo.” Liu v. Republic of China,\\n892 F.2d 1419, 1424 (9th Cir. 1989). “When the doctrine is\\nraised on a motion to dismiss, we take the allegations in the\\ncomplaint as true and view them in the light most favorable\\nto the plaintiffs.” Sea Breeze Salt, Inc. v. Mitsubishi Corp.,\\n899 F.3d 1064, 1068 (9th Cir. 2018) (citing Clayco\\nPetroleum Corp. v. Occidental Petroleum Corp., 712 F.2d\\n404, 406 (9th Cir. 1983) (per curiam)).\\n\\n III.\\n\\n While the act of state doctrine was once viewed as “an\\nexpression of international law, resting upon ‘the highest\\nconsiderations of international comity and expediency,’”\\nW.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int’l,\\n493 U.S. 400, 404 (1990) (quoting Oetjen v. Cent. Leather\\nCo., 246 U.S. 297, 303–04 (1918)), we have come to view\\nthe doctrine “as a consequence of domestic separation of\\npowers, reflecting ‘the strong sense of the Judicial Branch\\nthat its engagement in the task of passing on the validity of\\nforeign acts of state may hinder’ the conduct of foreign\\naffairs,” id. (quoting Banco Nacional de Cuba v. Sabbatino,\\n376 U.S. 398, 423 (1964)).\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 13\\n\\n “As a doctrinal matter, the ‘classic statement’ of the act\\nof state doctrine is that ‘[e]very sovereign State is bound to\\nrespect the independence of every other sovereign State, and\\nthe courts of one country will not sit in judgment on the acts\\nof the government of another done within its own territory.’”\\nSea Breeze Salt, 899 F.3d at 1069 (quoting Credit Suisse v.\\nU.S. Dist. Court for Cent. Dist. of Cal., 130 F.3d 1342, 1346\\n(9th Cir. 1997)). “In its modern formulation, the doctrine\\nbars suit where ‘(1) there is an official act of a foreign\\nsovereign performed within its own territory; and (2) the\\nrelief sought or the defense interposed [in the action would\\nrequire] a court in the United States to declare invalid the\\n[foreign sovereign’s] official act.’” Id. (alterations in\\noriginal) (quoting Credit Suisse, 130 F.3d at 1346). “[E]ven\\nwhen [these] two mandatory elements are satisfied, courts\\nmay appropriately look to additional factors [i.e., the policies\\nunderlying the act of state doctrine] to determine whether\\napplication of the act of state doctrine is justified.” Id.\\nat 1072–73 (citing W.S. Kirkpatrick, 493 U.S. at 409).\\n\\n A. Invalidation of an Official Act of a Foreign\\n Sovereign\\n\\n The district court correctly held that all of Plaintiffs’\\nExchange Act claims are barred by the act of state doctrine\\nbecause they would require a United States court to\\ndetermine whether the Mexican tax authority’s 2012 APA\\nRuling was properly issued under Mexican law. Plaintiffs\\ndo not challenge the conclusion that the 2012 APA Ruling\\nissued by Mexico’s tax authority constitutes a “public and\\ngovernmental act[] of [a] sovereign state,” taken within its\\nown territory, Alfred Dunhill of London, Inc. v. Republic of\\nCuba, 425 U.S. 682, 695 (1976) (plurality opinion), but\\ninstead argue that the act of state doctrine applies only where\\nUnited States courts would be required to declare the foreign\\n\\n14 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\ngovernment’s action “null and void,” not unlawful in any\\nother way. But our precedent dictates otherwise. We have\\nlong recognized that the act of state doctrine applies where\\nresolution of a plaintiff’s claims would require a court to\\nevaluate a foreign sovereign’s compliance with its own laws.\\nSee West v. Multibanco Comermex, S.A., 807 F.2d 820, 828\\n(9th Cir. 1987) (“The evaluation by one sovereign of foreign\\nofficers’ compliance with their own laws would, at least in\\nthe absence of the foreign sovereign’s consent, intrude upon\\nthat state’s coequal status.”).\\n\\n In Kirkpatrick, the Supreme Court rejected application\\nof the act of state doctrine because “the factual predicate for\\napplication . . . d[id] not exist.” 493 U.S. at 405. It went on\\nto state: “Nothing in the present suit requires the Court to\\ndeclare invalid, and thus ineffective . . . the official act of a\\nforeign sovereign.” Id. (citation omitted). The Court further\\nreasoned that “[a]ct of state issues only arise when a court\\nmust decide—that is, when the outcome of the case turns\\nupon—the effect of official action by a foreign sovereign.”\\nId. at 406; see also Sabbatino, 376 U.S. at 415 n.17 (“An\\ninquiry by United States courts into the validity of an act of\\nan official of a foreign state under the law of that state would\\nnot only be exceedingly difficult but, if wrongly made,\\nwould be likely to be highly offensive to the state in\\nquestion.”).\\n\\n Plaintiffs rely on Kirkpatrick to support their argument\\nthat the act of state doctrine is inapplicable here because their\\nclaims do not require United States courts to decide whether\\nthe Mexican tax authority’s 2012 APA Ruling was valid. In\\nKirkpatrick, plaintiffs brought federal and state civil RICO\\nclaims, as well as claims under the Robinson-Patman Act of\\n1936, 15 U.S.C. § 13, against a competitor which allegedly\\npaid bribes to Nigerian officials in order to obtain a contract\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 15\\n\\nfrom the Nigerian government. 493 U.S. at 401–04. The\\nKirkpatrick defendants argued that the facts required to\\ndemonstrate they paid bribes to Nigerian officials to obtain\\ncontracts would also demonstrate that the contracts violated\\nNigerian law. Id. at 406. The Court disagreed, holding that\\n“[r]egardless of what the court’s factual findings may\\nsuggest as to the legality of the Nigerian contract, its legality\\nis simply not a question to be decided in the present suit, and\\nthere is thus no occasion to apply the rule of decision that the\\nact of state doctrine requires.” Id. The Court cited Sharon\\nv. Time, Inc., 599 F. Supp. 538, 546 (S.D.N.Y. 1984), to\\nemphasize that “[t]he issue in this litigation is not whether\\n[the alleged] acts are valid, but whether they occurred.” See\\nW.S. Kirkpatrick, 493 U.S. at 406.\\n\\n Here, unlike in Kirkpatrick, to conclude that Primero\\nmisled investors, a court must decide whether, and to what\\nextent, the 2012 APA Ruling complies with Mexico’s\\nIncome Tax Law, as well as various other Mexican laws\\ngoverning the ethical obligations of public servants in\\nMexico. Here, it is not simply a question of whether a given\\nact—in Kirkpatrick a bribe—occurred; the questions\\nPlaintiffs raise are as to the legality of the 2012 APA Ruling\\nitself, and what defendants knew about its validity or not.\\n\\n To prevail on their securities fraud claims under section\\n10(b) and Rule 10b-5, Plaintiffs must show (1) a material\\nmisrepresentation or omission; (2) scienter; (3) a connection\\nbetween the misrepresentation or omission and the purchase\\nor sale of a security; (4) reliance; (5) economic loss; and\\n(6) loss causation. See Or. Pub. Emps. Ret. Fund v. Apollo\\nGrp. Inc., 774 F.3d 598, 603 (9th Cir. 2014) (citing\\nStoneridge Inv. Partners, LLC v. Sci.-Atlanta, Inc., 552 U.S.\\n148, 157 (2008)). “[S]cienter refers to ‘a mental state\\nembracing intent to deceive, manipulate, or defraud,’”\\n\\n16 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\nMerck & Co., Inc. v. Reynolds, 559 U.S. 633, 648 (2010)\\n(citing Ernst & Ernst v. Hochfelder, 425 U.S. 185, 194 n.12\\n(1976)), and may also refer to deliberate recklessness, “a\\nform of intentional or knowing misconduct.” Zucco\\nPartners, LLC v. Digimarc Corp., 552 F.3d 981, 991 (9th\\nCir. 2009) (citation omitted). Plaintiffs accordingly must\\nshow that Primero “made a material misstatement with an\\nintent to deceive—not merely innocently or negligently.”\\nMerck & Co., 559 U.S. at 648–49 (citing Tellabs, Inc. v.\\nMakor Issues & Rights, Ltd., 551 U.S. 308, 319 (2007)).\\nPlaintiffs’ claims under sections 20A, 20(a) of the Exchange\\nAct, in turn, depend on predicate violations of either section\\n10(b) or Rule 10b-5. See In re VeriFone Holdings, Inc. Sec.\\nLitig., 704 F.3d 694, 710–11 (9th Cir. 2012) (“To prevail on\\nits claims for violations of § 20A, [Plaintiff] must first\\nsufficiently allege a violation of § 10(b) or Rule 10b-5.”\\n(citing Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1035\\nn.15 (9th Cir. 2002))); see also Zucco Partners, LLC v.\\nDigimarc Corp., 552 F.3d 981, 990 (9th Cir. 2009) (“Section\\n20(a) claims may be dismissed summarily . . . if a plaintiff\\nfails to adequately plead a primary violation of section\\n10(b).”). In total, Plaintiffs identify two categories of\\nallegedly materially misleading statements: (1) statements\\nabout the 2012 APA Ruling and its impact on Primero’s\\nfinances; and (2) statements that Primero’s quarterly and\\nannual statements were prepared in accordance with\\nInternational Financial Reporting Standards. Plaintiffs\\nallege that in making both categories of statements,\\ndefendants knowingly failed to disclose legal deficiencies\\nunder Mexican tax law in the 2012 APA Ruling that could\\nrender it vulnerable to non-renewal or nullification. The\\nlogic is compelling: United States courts would be required\\nto decide whether there were in fact legal deficiencies under\\nMexican law that would nullify the APA Ruling—in other\\nwords invalidate it—that could be known and were known\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 17\\n\\nas such to defendants when they made their public\\nstatements. By contrast, in Kirkpatrick, United States courts\\nwere not called upon to decide whether the Nigerian contract\\nwas legally deficient under Nigerian law due to the bribes;\\nall they were asked to decide is whether bribes were made. 1\\n\\n As Plaintiffs also acknowledge, the 2012 APA Ruling\\nthat they contend is so legally flawed as to render Primero’s\\nstatements about it misleading, remains lawful and valid\\nunder Mexican law. And although Plaintiffs allege that the\\nMexican government has filed a juicio de lesividad to nullify\\nthe 2012 APA Ruling, according to the complaint those\\nproceedings are ongoing, and there are no allegations that\\nthe Mexican government has ruled on its juicio de lesividad.\\n\\n Under these circumstances, allowing Plaintiffs’\\nExchange Act claims to proceed would require “[t]he\\nevaluation by one sovereign of foreign officers’ compliance\\nwith their own laws . . . in the absence of the foreign\\nsovereign’s consent,” because “[t]he acts or omissions of the\\nsovereign,” and the compliance of Mexican officials with\\nMexican law “is the determinative issue on [Plaintiffs’]\\nclaim[s].” West, 807 F.2d at 828. For instance, Plaintiffs\\nallege that the 2012 APA Ruling was vulnerable to legal\\n\\n 1\\n The dissent seems to misapprehend this aspect of a section 10(b)\\nand Rule 10b-5 claim. To prevail, Plaintiffs must demonstrate an\\nintentional or knowing material misleading fact or omission. See Merck\\n& Co., 559 U.S. at 648–49. The only way Primero’s statements were\\nknowingly or intentionally misleading is if the alleged unethical behavior\\nof a Mexican official rendered Mexico’s 2012 APA Ruling invalid.\\nEven taking Plaintiffs’ allegations as true, and assuming that Luis Natera\\nacted unethically, Plaintiffs still must prove both that this conduct\\ninvalidated the 2012 APA Ruling under Mexican law as a result and that\\nPrimero knew that the APA Ruling was so invalidated at the time of its\\nstatements.\\n\\n18 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\nchallenge, and could therefore be nullified, under two\\nseparate articles of Mexico’s Income Tax Law, as well as at\\nleast two other articles of Mexico’s conflict of interest laws.\\nBut for a court to credit Plaintiffs’ theories, and conclude\\nthat Primero knowingly failed to disclose these alleged\\nmaterial legal deficiencies, that court will necessarily be\\nrequired to determine whether those alleged deficiencies\\nwere in fact present in the APA proceedings, should have led\\nthe Mexican tax authority to disapprove the APA in the first\\nplace, or resulted in an APA Ruling that was subject to\\nnullification. This sort of review of a foreign government’s\\ndecision is precisely what the act of state doctrine precludes.\\nBecause Plaintiffs’ Exchange Act claims would require a\\ncourt to evaluate Mexico’s tax authority’s compliance with\\nMexican law, their claims would require “a court in the\\nUnited States to declare invalid the official act of a foreign\\nsovereign performed within its own territory.” W.S.\\nKirkpatrick, 493 U.S. at 405. The second element for\\napplication of the act of state doctrine is therefore met. 2\\n\\n\\n 2\\n While the dissent focuses extensively on the history of the Supreme\\nCourt’s act of state doctrine jurisprudence, it fails to engage in the\\ndoctrinal analysis required in this case. As we have previously\\nrecognized, the act of state doctrine bars suit where “(1) there is an\\nofficial act of a foreign sovereign performed within its own territory; and\\n(2) the relief sought or the defense interposed [in the action] would\\nrequire a court in the United States to declare invalid the [foreign\\nsovereign’s] official act.” Sea Breeze Salt, 899 F.3d at 1069 (alterations\\nin original) (citation omitted). Here, applying our precedent, we hold\\nthat the second element of the act of state doctrine is satisfied where the\\nvalidity of a public and governmental act—Mexico’s 2012 APA\\nRuling—under Mexico’s own, myriad applicable laws is outcome-\\ndeterminative of Plaintiffs’ claims. See West, 807 F.2d at 828. This\\nholding is squarely consistent with W.S. Kirkpatrick, which affirmed,\\nrather than reversed, the principle acknowledged in West that the act of\\nstate doctrine applies where a court must decide the legality of a foreign\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 19\\n\\n B. The Sabbatino Factors\\n\\n In Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398\\n(1964), the Supreme Court acknowledged three factors for\\ncourts to consider to ensure that application of the act of state\\ndoctrine “reflect[s] the proper distribution of functions\\nbetween the judicial and political branches of the\\nGovernment on matters bearing upon foreign affairs.”\\n376 U.S. at 427–28. First, “the greater the degree of\\ncodification or consensus concerning a particular area of\\ninternational law, the more appropriate it is for the judiciary\\nto render decisions regarding it . . . .” Id. at 428. Second,\\n“the less important the implications of an issue are for our\\nforeign relations, the weaker the justification for exclusivity\\nin the political branches.” Id. And finally, “[t]he balance of\\nrelevant considerations may also be shifted if the\\ngovernment which perpetrated the challenged act of state is\\nno longer in existence . . . .” Id. As the Court later stated,\\n\\nsovereign’s actions under that sovereign’s laws. See W.S. Kirkpatrick,\\n493 U.S. at 406.\\n\\n The dissent further asserts that Plaintiffs’ Exchange Act claims do\\nnot require us to determine the legality of the 2012 APA Ruling. See,\\ne.g., Dissent at 34 (“Plaintiffs need not show . . . that the 2012 APA\\nRuling was illegal or invalid.”). But in order for us to determine whether\\nor not Defendants’ statements or omissions about the legal validity of the\\n2012 APA Ruling were materially false or misleading, we must\\nnecessarily determine in the first instance (1) whether the 2012 APA\\nRuling did in fact suffer from legal defects under Mexican law, and\\n(2) whether Defendants’ statements or omissions accurately reflected\\nthose purported legal defects under Mexican law. Despite its exhaustive\\nreview, the dissent fails to explain how Plaintiffs’ claims can be resolved\\nwithout first determining whether the 2012 APA Ruling suffered from\\nlegal deficiencies under Mexican law, and similarly fails to show how\\nthe second element of the act of state doctrine is not met where a foreign\\nsovereign’s compliance with its own laws is the determinative issue on\\nPlaintiffs’ claims, as here.\\n\\n20 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\n“in Sabbatino . . . we observed that sometimes, even though\\nthe validity of the act of a foreign sovereign within its own\\nterritory is called into question, the policies underlying the\\nact of state doctrine may not justify its application.” W.S.\\nKirkpatrick, 493 U.S. at 409.\\n\\n Plaintiffs contend that the district court erred by failing\\nto conduct an analysis of the Sabbatino factors. But neither\\nour circuit nor the Supreme Court has required explicit\\nconsideration of the Sabbatino factors in properly applying\\nthe act of state doctrine. See Sea Breeze Salt, 899 F.3d\\nat 1072–73 (“[E]ven when the two mandatory elements are\\nsatisfied, courts may appropriately look to additional factors\\nto determine whether application of the act of state doctrine\\nis justified.” (emphasis added) (citing W.S. Kirkpatrick,\\n493 U.S. at 409)). This accords with the approach taken by\\nour sister circuits. See, e.g., Konowaloff v. Metro. Museum\\nof Art, 702 F.3d 140, 146 (2d Cir. 2012) (“[A] court may\\nproperly grant a motion to dismiss on the basis of [the act of\\nstate doctrine] when its applicability is shown on the face of\\nthe complaint.”), cert. denied, 570 U.S. 906 (2013); see also\\nWorld Wide Minerals, Ltd. v. Republic of Kazakhstan,\\n296 F.3d 1154, 1164–67 (D.C. Cir. 2002) (affirming the\\ndistrict court’s dismissal under the act of state doctrine\\nwhere the district court did not address the Sabbatino factors,\\nbut the case was “plainly [one] in which the policies\\nunderlying the doctrine ‘justify its application’” (quoting\\nW.S. Kirkpatrick, 493 U.S. at 409)), cert. denied, 537 U.S.\\n1187 (2003). Because this is a case in which the policies\\nunderlying the act of state doctrine justify its application, the\\ndistrict court did not err in declining to specifically address\\neach Sabbatino factor. And even if the district court had\\ngone on to address those factors, they would not have\\nweighed against applying the act of state doctrine.\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 21\\n\\n With respect to “the degree of codification or consensus\\nconcerning a particular area of international law,”\\nSabbatino, 376 U.S. at 428, Plaintiffs argue that there is a\\nhigh degree of international consensus as to the appropriate\\nuse of the arm’s length principle for transfer pricing\\nmethodologies, rendering review of the 2012 APA Ruling\\nappropriate. While Plaintiffs cite to guidelines on transfer\\npricing published by the Organisation for Economic Co-\\noperation and Development (OECD) in support of their\\nclaim of international consensus on the arm’s length\\nprinciple, these guidelines do not affect the issue underlying\\nPlaintiffs’ claims: that resolving their claims would require\\na court to determine whether the Mexican government\\nviolated its own tax laws in issuing the 2012 APA Ruling.\\nPlaintiffs’ assertion that the 2012 APA Ruling failed to\\ncomply with the arm’s length principle is simply a\\nrephrasing of their assertion that the 2012 APA Ruling failed\\nto comply with Mexico’s Income Tax Law. The SAT, in its\\nruling, approved of a transfer pricing methodology for PEM,\\nconcluding that this methodology complied with Article 215\\nof Mexico’s Income Tax Law. Article 215, according to\\nPlaintiffs, “sets forth the [arm’s length principle], providing\\nthat corporate taxpayers dealing with foreign related parties\\nare required to determine their gross income and allowable\\ndeductions by using the prices and consideration that would\\nhave been used with or between independent parties in\\ncomparable transactions.” As such, guidelines published by\\nthe OECD as to the appropriate use of the arm’s length\\nprinciple have no effect on the requirement inherent in\\nPlaintiffs’ claims that a court in the United States reevaluate\\nthe Mexican government’s compliance with its own tax\\nlaws. Because of this, the degree of international consensus\\nas to the arm’s length principle does not affect our\\nconclusion that the act of state doctrine applies.\\n\\n22 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\n Second, Plaintiffs’ claims carry significant implications\\nfor U.S. foreign relations because the subject of the 2012\\nAPA Ruling is how Mexico taxes transfers of silver, a\\nnatural resource extracted in Mexico. We have repeatedly\\nrecognized that where an action challenges a foreign\\nsovereign’s decisions about how to exploit its own natural\\nresources, that action “would be inherently offensive to the\\nprinciple of co-equality among international sovereigns[.]”\\nSea Breeze Salt, 899 F.3d at 1073; see also Int’l Ass’n of\\nMachinists and Aerospace Workers, (IAM) v. OPEC,\\n649 F.2d 1354, 1361 (9th Cir. 1981) (“[T]he granting of any\\nrelief would in effect amount to an order from a domestic\\ncourt instructing a foreign sovereign to alter its chosen\\nmeans of allocating and profiting from its own valuable\\nnatural resources.”). Here, were a United States court to\\nreview the 2012 APA Ruling, and attempt to determine\\nwhether the 2012 APA Ruling complied with Mexico’s tax\\nlaws, it would be instructing a foreign sovereign both on how\\nit should tax and regulate silver extracted in Mexico, and on\\nhow to do so in compliance with the foreign sovereign’s own\\nlaws. The “very nature” of that action would raise “[t]he\\npossibility of insult to the [Mexican government] and of\\ninterference with the efforts of the political branches to seek\\nfavorable relations with [the Mexican government],”\\ndirectly supporting application of the act of state doctrine.\\nIAM, 649 F.2d at 1361; see also Sabbatino, 376 U.S. at 415\\nn.17 (“An inquiry by United States courts into the validity of\\nan act of an official of a foreign state under the law of that\\nstate . . . if wrongly made[] would be likely to be highly\\noffensive to the state in question.”).\\n\\n Third, as to whether “[t]he balance of relevant\\nconsiderations may . . . be shifted if the government which\\nperpetuated the challenged act of state is no longer in\\nexistence,” Sabbatino, 376 U.S. at 428, Plaintiffs argue that\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 23\\n\\na change in presidential administrations since the 2012 APA\\nRuling issued counsels against applying the doctrine. But a\\nchange in presidential administrations and policies does not\\nmean that the government is no longer in existence, and\\nPlaintiffs cite no authority suggesting that a mere change in\\npresidential administrations satisfies the third Sabbatino\\nfactor. Here, the challenged act of state, the government, and\\nthe institution that took the challenged act, the SAT, remain\\nintact. Cf. Sea Breeze Salt, 899 F.3d at 1074 (“[I]t is\\nundisputed that the government of Mexico continues to\\nexist.”). Furthermore, Plaintiffs’ complaint alleges that the\\nnew administration has initiated proceedings to resolve the\\nsame issues at the heart of their claims: whether, and to what\\nextent, the 2012 APA Ruling complied with Mexico’s tax\\nlaws. That inquiry counsels against the courts of a foreign\\nnation interfering with Mexico’s sovereign interest in\\ndetermining the SAT’s compliance with Mexican tax law.\\nTherefore, the change in presidential administrations\\nPlaintiffs identify does not weigh against applying the act of\\nstate doctrine.\\n\\n Finally, Plaintiffs argue that the district court erred in\\nfailing to consider whether the challenged act of state was in\\nthe public interest. While we have recognized in other\\ncontexts that “[o]ne factor we must consider [in deciding\\nwhether to apply the act of state doctrine] is whether the\\nforeign state was acting in the public interest,” Liu, 892 F.2d\\nat 1432, we have not mandated that courts consider the\\npublic interest in determining whether the act of state\\ndoctrine applies. See, e.g., Credit Suisse, 130 F.3d at 1346–\\n48 (applying act of state doctrine without considering\\nwhether a foreign sovereign’s actions were taken in its\\npublic’s interest); see also Sea Breeze Salt, 899 F.3d at\\n1068–74 (same). Plaintiffs’ argument is that we should\\ndecline to apply the act of state doctrine because Luis\\n\\n24 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\nNatera’s issuance of the 2012 APA Ruling was not in the\\npublic interest, because “it violated Mexican law . . . and\\ndeprived Mexico of legitimate tax revenue that could have\\nbeen used for its populace.” But to deem those\\nconsiderations as precluding application of the act of state\\ndoctrine would turn the doctrine on its head. These are\\nprecisely the types of domestic issues that Mexico should be\\nable to resolve without interference by foreign courts. Thus,\\nwhether the 2012 APA Ruling advanced Mexico’s public\\ninterest does not counsel against applying the act of state\\ndoctrine in this case.\\n\\n In sum, the mandatory elements for applying the act of\\nstate doctrine are satisfied, and the policies underlying the\\ndoctrine weigh in favor of applying it to bar Plaintiffs’\\nclaims. 3\\n\\n IV.\\n\\n For the foregoing reasons, we affirm the district court’s\\ndismissal under the act of state doctrine, and decline to\\nreconsider whether a tax ruling by the Mexican government,\\nthat remains valid in Mexico, complied with Mexico’s tax\\nlaws.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 3\\n Because we conclude that the act of state doctrine applies to bar all\\nof Plaintiffs’ claims, we need not consider whether the district court\\ncorrectly dismissed this action on the alternative ground that Plaintiffs\\nfailed to adequately plead any materially false or misleading statements.\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 25\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4438758/\", \"author_raw\": \"WARDLAW, Circuit Judge:\"}, {\"author\": \"BENNETT, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"BENNETT, Circuit Judge, dissenting:\\n\\n “In every case in which we have held the act of state\\ndoctrine applicable, the relief sought or the defense\\ninterposed would have required a court in the United States\\nto declare invalid the official act of a foreign sovereign\\nperformed within its own territory.” W.S. Kirkpatrick & Co.\\nv. Envtl. Tectonics Corp., Int’l, 493 U.S. 400, 405 (1990). At\\nissue here is whether Defendants knowingly made materially\\nfalse or misleading statements, including non-disclosure of\\nmaterial information. Contrary to the majority’s assertion,\\nthe validity of the 2012 APA Ruling (the “Ruling”) is not at\\nissue; Plaintiffs hardly need to ask this court to invalidate the\\nRuling—the Mexican government is doing that already.\\n\\n But, to be clear, Plaintiffs have not sought a\\ndetermination that the APA Ruling is invalid, and such a\\ndetermination is unnecessary for them to prevail. To find for\\nPlaintiffs, a court would only need to determine whether, at\\nthe time the Defendants made the alleged\\nmisrepresentations, they knew that there was a real risk that\\nthe Mexican government would nullify the Ruling—not\\nwhether the Ruling was actually invalid.\\n\\n Because the majority’s opinion misapplies the act of\\nstate doctrine, and because I believe that Defendants’\\nstatements were materially false or misleading, I respectfully\\ndissent.\\n\\n I.\\n\\n The linchpin of the act of state doctrine has always been\\nan unwillingness to countermand the act of a foreign\\nsovereign. See Blad v. Bamfield, 36 Eng. Rep. 992, 993 (Ch.\\n1674) (refusing to reverse Danish seizure of an English\\nship). The doctrine originated in Seventeenth Century\\n\\n26 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\nEngland as an extension of sovereign immunity for officials\\nacting on the sovereign’s behalf. Michael J. Bazyler,\\nAbolishing the Act of State Doctrine, 134 U. Pa. L. Rev. 325,\\n330 n.23 (1986) (recognizing Blad v. Bamfield as the\\ncommon law origin of the act of state doctrine); see also,\\ne.g., Nabab of Arcot v. East India Co., (1793) 4 Brown Ch.\\n181 (holding that the East India Company could not be sued\\nbecause it acted with sovereign authority).\\n\\n The Supreme Court first recognized the doctrine in The\\nSchooner Exchange v. McFaddon, 11 U.S. 116, 122 (1812),\\nin which the Court refused to set aside the French seizure of\\na ship on the orders of Napoleon: “We do not justify that\\ndecree, but we say that whenever the act is done by a\\nsovereign in his sovereign character, it becomes a matter of\\nnegotiation, or of reprisals, or of war, according to its\\nimportance.” Following The Schooner Exchange, the Court\\nbuilt upon this sovereign immunity corollary in cases\\ninvolving property disputes arising from sovereign actions\\nduring times of war. See, e.g., United States v. Rice, 17 U.S.\\n246 (1819) (holding that no taxes due on goods imported by\\nthe British during the War of 1812); Williams v. Bruffy,\\n96 U.S. 176 (1877) (refusing to uphold Confederate States’\\nsequestration of debts to Union loyalists as the act of an\\nindependent nation).\\n\\n In 1897, the Supreme Court formally articulated the act\\nof state doctrine: “Every sovereign state is bound to respect\\nthe independence of every other sovereign state, and the\\ncourts of one country will not sit in judgment on the acts of\\nthe government of another, done within its own territory.”\\nUnderhill v. Hernandez, 168 U.S. 250, 252 (1897). The\\nCourt dismissed tort claims for false imprisonment by a\\nVenezuelan general during an 1892 revolution, finding that\\n“[t]he acts complained of were the acts of a military\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 27\\n\\ncommander representing the authority of the revolutionary\\nparty as a government, which afterwards succeeded, and was\\nrecognized by the United States.” Id. at 254.\\n\\n Since Underhill, the Supreme Court has applied the act\\nof state doctrine in only two situations: 1) actions seeking to\\nreverse a foreign land grant, Shapleigh v. Mier, 299 U.S.\\n468, 471 (1937); and 2) actions seeking to reverse a\\nsovereign seizure of property, Oetjen v. Cent. Leather Co.,\\n246 U.S. 297 (1918) (Mexican general’s seizure of goods\\nduring revolution); Ricaud v. Am. Metal Co., 246 U.S. 304\\n(1918) (same); United States v. Belmont, 301 U.S. 324\\n(1937) (Soviet nationalization of property); United States v.\\nPink, 315 U.S. 203 (1942) (same); Banco Nacional de Cuba\\nv. Sabbatino, 376 U.S. 398 (1964) (Cuban expropriation\\ndecree). 1 In all of these cases, plaintiffs asked the Court to\\nset aside the acts of foreign sovereigns, and in all, the Court\\nrefused.\\n\\n Oetjen and Ricaud, companion cases, involved the\\nseizure of property by Mexican generals during a revolution.\\nIn each, a general seized property for the war effort and then\\nsold it to American third parties who re-sold it in turn.\\nPlaintiffs sued the new owners, claiming title and asking the\\nCourt to invalidate the sales. The Court refused, invoking the\\nact of state doctrine: “[W]e have a duly commissioned\\nmilitary commander of what must be accepted as the\\nlegitimate government of Mexico, in the progress of a\\nrevolution, and when conducting active independent\\noperations, seizing and selling in Mexico, as a military\\n\\n 1\\n That nearly all the Supreme Court cases applying the act of state\\ndoctrine involved seizures of property—sovereign acts far different from\\nthose involved here—should have given the majority immediate pause.\\nIt didn’t.\\n\\n28 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\ncontribution, the property in controversy, at the time owned\\nand in the possession of a citizen of Mexico.” Oetjen,\\n246 U.S. at 303.\\n\\n In 1937, the Court similarly refused to invalidate a\\nMexican land grant, holding that “the [Mexican]\\nexpropriation decree, if lawful and effective under the\\nConstitution and laws of Mexico, must be recognized as\\nlawful and effective under the laws of the United States, the\\nsovereignty of Mexico at the time of that decree being\\nexclusive of any other.” Shapleigh, 299 U.S. at 471. The\\nCourt examined the validity of the expropriation decree\\nunder Mexican law when it was granted: “What concerns us\\nhere and now is the efficacy of the decree under the land law\\nof Mexico at the date of its proclamation to extinguish\\nhostile claims of ownership and pass the title to another.” Id.\\nThe Court discussed evidence on Mexican law from\\n“[e]xperts testifying . . . [as to the] the Constitution of the\\nFederal Republic (Constitution of Mexico, 1917, Art. 27),\\nand . . . the Agrarian Law of the State of Chihuahua,” id. at\\n473, as well as “[o]pinions of the Supreme Court of\\nMexico,” id. at 474. 2 The Court found the expropriation\\ndecree validly extinguished competing claims under\\nMexican law when it was made and thus was “proof against\\nassault.” Id. at 473.\\n\\n The last time the Court invoked the act of state doctrine\\nwas more than fifty years ago, in Sabbatino, when it refused\\nto reverse a Cuban expropriation decree. The Court limited\\n\\n 2\\n Here, as in Shapleigh, the district court may have needed to hear\\nexpert testimony about the laws of Mexico (in accord with Rule 44.1 of\\nthe Federal Rules of Civil Procedure). But taking that testimony to\\ndetermine whether there were false or misleading statements is a far cry\\nfrom adjudicating the acts of a foreign sovereign.\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 29\\n\\nits holding to property: “[R]ather than laying down or\\nreaffirming an inflexible and all-encompassing rule in this\\ncase, we decide only that the [Judicial Branch] will not\\nexamine the validity of a taking of property within its own\\nterritory by a foreign sovereign government, extant and\\nrecognized by this country at the time of suit[.]” 376 U.S.\\nat 428. Congress disagreed and less than a year later declared\\nthat seizure of property in violation of international law does\\nnot implicate the act of state doctrine. Foreign Assistance\\nAct of 1964 (Second Hickenlooper Amendment), Pub. L.\\nNo. 88-633, 77 Stat. 386 (current version at 22 U.S.C.\\n§ 2370(e)(2)).\\n\\n Sabbatino established three principles for the modern act\\nof state doctrine. First, the doctrine is a “principle of\\ndecision.” 376 U.S. at 427. Second, it has constitutional\\nunderpinnings based on institutional competency but neither\\nthe Constitution nor international law mandate it. Id. at 423.\\nAnd third, applying the doctrine requires a balancing test\\nbecause “the less important the implications of an issue are\\nfor our foreign relations, the weaker the justification for\\nexclusivity in the political branches.” Id. at 428.\\n\\n Since the 1960s, the Court has consistently found the act\\nof state doctrine inapplicable, either because the policies\\nunderlying the act do not justify its application, First Nat.\\nCity Bank v. Banco Nacional de Cuba, 406 U.S. 759, 769–\\n70 (1972) (plurality op.) (finding act of state doctrine did not\\nbar counterclaim against Cuba where the Department of\\nState advised the Court the doctrine need not be applied),\\nbecause no state act occurred, Alfred Dunhill v. Republic of\\nCuba, 425 U.S. 682 (1976) (plurality op.) (suggesting there\\nmay be a commercial exception to the doctrine), or because\\nundermining a foreign act did not require the court to\\ninvalidate it, W.S. Kirkpatrick, 493 U.S. at 409.\\n\\n30 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\n “The act of state doctrine is not some vague doctrine of\\nabstention but a principle of decision.” Id. at 406 (quoting\\nSabbatino, 376 U.S. at 427) (emphasis in W.S. Kirkpatrick).\\nIn W.S. Kirkpatrick, the plaintiff brought state and federal\\nRICO claims alleging that the defendants bribed Nigerian\\nofficials to obtain a lucrative government contract. A\\nunanimous Supreme Court held that litigating the Nigerian\\nofficials’ misconduct could not trigger the act of state\\ndoctrine, even though such misconduct could invalidate the\\naward of the state contract under Nigerian law. Id. at 406\\n(explaining that the doctrine did not apply even if “factual\\nfindings . . . may cast doubt upon the validity of foreign\\nsovereign acts”).\\n\\n Before 1991, lower courts had been applying the act of\\nstate doctrine any time an inquiry would “impugn or\\nquestion the nobility of a foreign nation’s motivation.”\\nClayco Petroleum Corp. v. Occidental Petroleum Corp.,\\n712 F.2d 404, 407 (9th Cir. 1983). The facts of Clayco were\\nnearly identical to those in W.S. Kirkpatrick—plaintiffs\\nclaimed that defendants paid bribes to foreign officials to\\nsecure “valuable off-shore oil concession[s].” Clayco,\\n712 F.2d at 405. Since “the very existence of plaintiffs’\\nclaim depend[ed] upon establishing that the motivation for\\nthe sovereign act was bribery,” we dismissed the case. Id.\\nat 407. Following that principle, a few years later we\\nestablished that “[t]he evaluation by one sovereign of foreign\\nofficers’ compliance with their own laws would, at least in\\nthe absence of the foreign sovereign’s consent, intrude upon\\nthat state’s coequal status.” West v. Multibanco Comermex,\\nS.A., 807 F.2d 820, 828 (9th Cir. 1987) (citing e.g., Clayco,\\n712 F.2d at 406–407). The majority relies on this\\ninterpretation of the act of state doctrine. Maj. op. at 18.\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 31\\n\\n The district court in W.S. Kirkpatrick relied on this same\\ninterpretation, citing Clayco when it dismissed the plaintiff’s\\nclaims. Envtl. Tectonics Corp. v. W.S. Kirkpatrick & Co.,\\nInc. (Kirkpatrick District Court Decision), 659 F. Supp.\\n1381, 1393 (D.N.J. 1987). The district court determined that\\nit could not inquire into the “validity of an act by a foreign\\ngovernment.” Id. at 1392. Thus, plaintiff’s case was barred\\nbecause “an indispensable ingredient of [plaintiff’s] cause of\\naction requires establishing the involvement of the\\nGovernment of Nigeria, its officials or representatives in\\ncorrupt activities which violate Nigerian law.” Id. at 1394.\\n\\n When it took up W.S. Kirkpatrick, the Supreme Court\\ndirectly overruled this interpretation of the act of state\\ndoctrine: “[It] does not establish an exception for cases and\\ncontroversies that may embarrass foreign governments, but\\nmerely requires that, in the process of deciding, the acts of\\nforeign sovereigns taken within their own jurisdictions shall\\nbe deemed valid.” 493 U.S. at 409. Undermining the validity\\nof a state act (bribery was illegal in Nigeria) differs from\\ninvalidating it: “Neither the claim nor any asserted defense\\nrequires a determination that Nigeria’s contract with\\nKirkpatrick International was, or was not, effective . . .\\n[r]egardless of what the court’s factual findings may suggest\\nas to the legality of the Nigerian contract.” Id. at 406\\n(emphasis added). That holding should end the analysis here.\\nPlaintiffs’ claims are based on alleged materially false and\\nmisleading statements. If Plaintiffs are correct, the ultimate\\nfactual findings may imply that Defendants improperly\\nobtained the APA Ruling, which was subject, ab initio, to\\nchallenge and ultimate retraction (nunc pro tunc or\\notherwise). But to paraphrase W.S. Kirkpatrick, neither the\\nclaim nor any asserted defense requires a determination that\\nthe APA Ruling was or was not effective, no matter what the\\ncourt’s factual findings may suggest about the legality of the\\n\\n32 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\nAPA Ruling or Defendants’ efforts to obtain it. After W.S.\\nKirkpatrick, the majority’s holding that the act of state\\ndoctrine bars any inquiry into “foreign officers’ compliance\\nwith their own laws,” Maj. op. at 14, simply isn’t\\nsupportable.\\n\\n In each of the very few Supreme Court cases invoking\\nthe doctrine, a sovereign allegedly caused the injury\\n(seizure/expropriation of property), and the requested\\nremedy required the court to set that act aside. The same has\\nbeen true in this circuit, except for the Clayco and\\nMultibanco line of cases overruled in W.S. Kirkpatrick. For\\nexample, in Credit Suisse v. U.S. District Court for the\\nCentral District of California, 130 F.3d 1342, 1347 (9th Cir.\\n1997), the plaintiff requested injunctive and declaratory\\nrelief, which would have required the court to override Swiss\\nExecutive Orders. In International Association of\\nMachinists & Aerospace Workers (IAM) v. Organization of\\nPetroleum Exporting Countries (OPEC), 649 F.2d 1354,\\n1355 (9th Cir. 1981), plaintiffs sought injunctive relief and\\ndamages against the OPEC countries—“The possibility of\\ninsult to the OPEC states and of interference with the efforts\\nof the political branches to seek favorable relations with\\nthem is apparent from the very nature of this action and the\\nremedy sought.” Id. at 1361. Most recently, in Sea Breeze\\nSalt, Inc. v. Mitsubishi Corp., 899 F.3d 1064, 1071 (9th Cir.\\n2018), the plaintiffs sought injunctive relief against Mexico 3\\nfor alleged anticompetitive acts: “[A]ny relief would in\\n\\n 3\\n We found that the alleged anti-competitive acts were “acts of the\\nMexican government” because the government owned a majority of the\\ndefendant corporation, appointed the majority of the company’s board of\\ndirectors and Director General (the CEO), and under Mexico’s\\nConstitution, had exclusive authority to distribute the country’s natural\\nresources, including by establishing companies to do so. Sea Breeze Salt,\\n899 F.3d at 1069–70.\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 33\\n\\neffect amount to an order from a domestic court instructing\\na foreign sovereign to alter its chosen means of allocating\\nand profiting from its own valuable natural resources.”\\n\\n Here, by contrast, Plaintiffs have not alleged an injury\\ncaused by the Mexican government—they have alleged\\ninjury caused by false or misleading statements and material\\nomissions. Plaintiffs do not seek to set aside the 2012 APA\\nRuling—they want money damages from a private company\\nand its officers and directors. Nothing in Plaintiffs’\\nrequested remedy would require the court to set aside or\\ninvalidate Mexico’s APA Ruling. Thus, the act of state\\ndoctrine, as clearly defined (and limited) by the Supreme\\nCourt, does not bar Plaintiffs’ claims.\\n\\n II.\\n\\n The majority believes the validity of the APA Ruling is\\nat stake because “a foreign sovereign’s compliance with its\\nown laws is the determinative issue on Plaintiffs’ claims[.]”\\nMaj. op. at 18 n.2. The same could be said of W.S.\\nKirkpatrick.\\n\\n The majority contends that “[h]ere, it is not simply a\\nquestion of whether a given act—in Kirkpatrick a bribe—\\noccurred; the questions Plaintiffs raise are as to the legality\\nof the 2012 APA Ruling itself, and what defendants knew\\nabout its validity or not.” Maj. op. at 15; also maj. op. at 17\\n(“[I]n Kirkpatrick, United States courts were not called upon\\nto decide whether the Nigerian contract was legally deficient\\nunder Nigerian law due to the bribes; all they were asked to\\ndecide is whether bribes were made.”).\\n\\n This oversimplifies the cause of action in W.S.\\nKirkpatrick. The W.S. Kirkpatrick plaintiff’s various claims\\nall depended on proving that the bribery induced Nigerian\\n\\n34 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\nofficials to award the contract to the defendant, and that but\\nfor the bribes, the officials would have awarded the contract\\nto plaintiff. Kirkpatrick District Court Decision, 659 F.\\nSupp. at 1393. In other words, Nigerian officials’ illegal\\ncorruption was a determinative issue. The question was not\\nsimply whether defendants paid a bribe, but whether the\\nbribe caused the state act—which was why the district court\\noriginally dismissed the case. Id. at 1395. (“[I]nquiry would\\nhave to be had as to the effect of the payment or promise of\\npayment of such a bribe, [and] whether in fact the payment\\nor anticipation of the bribe caused the award of the Nigerian\\nContract to Kirkpatrick International[.]”). Contrary to the\\nmajority’s assertion, the “occurrence” of bribery was\\nvirtually a given, since before plaintiff’s suit the defendants\\npleaded guilty to violating the Foreign Corrupt Practices\\nAct. W.S. Kirkpatrick, 493 U.S. at 401.\\n\\n There simply is no meaningful distinction between this\\ncase and W.S. Kirkpatrick. In fact, the state action here is\\nmore removed: In W.S. Kirkpatrick, the plaintiff had to\\ndemonstrate but-for causation as to the state act itself, while\\nhere, all of Plaintiffs’ claims relate to representations made\\n(or not made) to investors. Plaintiffs need not show that but\\nfor corrupt Mexican government officials the 2012 APA\\nRuling would not have been issued, nor must they show that\\nthe 2012 APA Ruling was illegal or invalid. 4\\n\\n\\n 4\\n The majority observes that “although a juicio de lesividad was\\nfiled, its contents, and the reasons for which it was filed, are not public.”\\nMaj. op. at 11; also id. (“Plaintiffs concede that the contents of the juicio\\nde lesividad and the reasons for which it was filed are not public[.]”). “In\\nreviewing the district court’s dismissal for failure to state a claim, we\\naccept the plaintiffs’ allegations as true and construe them in the light\\nmost favorable to the plaintiffs.” Siracusano v. Matrixx Initiatives, Inc.,\\n585 F.3d 1167, 1170 n.2 (9th Cir. 2009). While the juicio may not be\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 35\\n\\n Plaintiffs’ alleged injuries were not caused by a legally\\ndeficient APA Ruling, but by alleged false and misleading\\nstatements and material omissions about Mexican taxes, the\\nRuling, and how the Ruling was (or wasn’t) obtained. The\\nquestion is not, as the majority contends, whether the 2012\\nAPA Ruling is legally invalid, although Mexico evidently\\nthinks so. The question is whether Defendants intentionally\\nor knowingly made false, misleading, and/or legally\\ninsufficient statements about the Ruling and Mexican taxes,\\ngiven the circumstances allegedly known to Defendants but\\nnot to Plaintiffs (like that the approving official’s brother\\nallegedly represented Defendants).\\n\\n The majority argues that to prevail, Plaintiffs would have\\nto show that the APA Ruling was invalid and that\\nDefendants “knew that the APA Ruling was so invalidated\\nat the time of its statements.” Maj. op. at 17 n.1. Not so.\\n\\n To prevail, Plaintiffs would need to show that\\nDefendants’ statements “affirmatively create[d] an\\nimpression of a state of affairs that differ[ed] in a material\\nway from the one that actually exist[ed.]” Brody v.\\nTransitional Hosps. Corp., 280 F.3d 997, 1006 (9th Cir.\\n2002). 5 According to Plaintiffs, Defendants told investors\\nthat the favorable Ruling was an all but permanent solution\\n\\n\\npublic, its contents would be discoverable if the proceedings moved\\nforward. At this stage, any uncertainty about the juicio’s exact contents\\nshould not be held against Plaintiffs. And, evidence submitted by\\nDefendants—their NAFTA arbitration demand filed as an exhibit to their\\nmotion to dismiss—suggests that at least one of Plaintiffs’ alleged\\ndefects (the flawed methodology) was a basis for the juicio.\\n 5\\n As the district court did not reach scienter, I assume, arguendo,\\nthat Plaintiffs have adequately established Defendants acted with the\\nintent to mislead.\\n\\n36 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\nto the company’s cash-flow problems. But unknown to\\nPlaintiffs, when Defendants made this representation,\\nDefendants knew that they obtained the Ruling through\\nquestionable means and that Mexico had begun investigating\\nthe Ruling and threatened to nullify it. Taking Plaintiffs’\\nallegations as true, Defendants’ statements affirmatively\\ncreated an impression of a state of affairs that differed in a\\nmaterial way from the actual one—they created the\\nimpression that the Ruling provided a permanent solution,\\nwhen in reality the Ruling was on shaky ground.\\n\\n Reaching this conclusion would not implicate the act of\\nstate doctrine because a court can determine whether there\\nwas a risk that Mexico would seek to nullify the Ruling and\\nwhether Defendants’ statements to investors improperly\\nminimized that risk, without concluding that the Ruling is\\nactually invalid. These types of findings might suggest that\\nthe Ruling is invalid, but like in W.S. Kirkpatrick, that is not\\nenough to implicate the act of state doctrine.\\n\\n And, if Plaintiffs were to prevail, a decision that\\nDefendants misled investors would not invalidate the\\nRuling, just as a determination that the W.S. Kirkpatrick\\ndefendants procured their contract illegally did not mean the\\ncourt was invalidating the contract.\\n\\n III.\\n\\n The majority recognizes that “sometimes, even though\\nthe validity of the act of a foreign sovereign within its own\\nterritory is called into question, the policies underlying the\\nact of state doctrine may not justify its application.” Maj. op.\\nat 20 (quoting W.S. Kirkpatrick, 493 U.S. at 409). In my\\nview, the majority should have never reached this step of the\\nanalysis because the act of state doctrine is simply not\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 37\\n\\nimplicated here. But, even were that not true, the majority’s\\nanalysis is deeply flawed.\\n\\n The Sabbatino factors—codification or consensus on\\ninternational law, the relative importance of an issue to\\nforeign relations, and the continuing existence of the foreign\\ngovernment—are not exclusive, but part of “[t]he balance of\\nrelevant considerations” for assessing what impact the case\\ncould have on foreign relations. Sabbatino, 376 U.S. at 428;\\nsee also W.S. Kirkpatrick, 493 U.S. at 409 (explaining the\\nSabbatino factors are part of a “balancing approach” for\\nevaluating whether “the policies underlying the act of state\\ndoctrine . . . justify its application”). In weighing the factors,\\n“[t]he ‘touchstone’ or ‘crucial element’ is the potential for\\ninterference with our foreign relations.” Liu v. Republic of\\nChina, 892 F.2d 1419, 1432 (9th Cir. 1989).\\n\\n To assess any impact on our foreign relations, the\\nprimary question must be “[t]he political interest of [the\\nforeign] country,” Sabbatino, 376 U.S. at 428, as well as “the\\ndepth and nature of the [foreign] government’s interest,” Liu,\\n892 F.2d at 1432. After all, if the foreign country has little\\nor no interest in the validity of an act of state, then the case\\nshould have little or no impact on foreign relations, and so\\nthere is no reason to apply the act of state doctrine. See\\nSabbatino, 376 U.S. at 428. If there is a consensus in\\ninternational law on an issue, then the court need not grapple\\nwith “the sensitive task of establishing a principle” that\\ncould offend the foreign country; the less important an issue\\nis to the foreign country, the less likely it is to impact foreign\\nrelations; and if the government that perpetrated the act of\\nstate is no longer in existence, then “the political interest of\\n[the foreign] country may, as a result, be measurably\\naltered.” Id.\\n\\n38 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\n In analyzing each Sabbatino factor independently, the\\nmajority glosses over the crucial question—does Mexico\\nhave an interest in the continuing validity of the APA\\nRuling? If it does not, this case does not implicate “the\\npolicies underlying the act of state doctrine.” W.S.\\nKirkpatrick, 493 U.S. at 409. Fortunately, the court does not\\nhave to speculate: By initiating proceedings to retroactively\\nnullify the APA Ruling, Mexico has signaled that it does not\\nhave an interest in the validity of the 2012 APA Ruling—in\\nfact, quite the opposite. 6\\n\\n The majority claims that because this case involves\\nMexico’s natural resources, it “carr[ies] significant\\nimplications for U.S. foreign relations.” Maj. op. at 22. It is\\nnot clear how or why that is, since any suggestion the 2012\\nAPA Ruling was either inconsistent with Mexico’s tax laws\\nor improperly procured by the approving official’s brother\\nwould be in keeping with Mexico’s apparent position on\\nthose issues. Moreover, the relationship to Mexico’s natural\\nresources is far more attenuated here than in the two cases\\nthe majority cites. In OPEC, 649 F.2d 1354 and Sea Breeze\\nSalt, 899 F.3d 1064, the plaintiffs were asking for injunctive\\nrelief that contradicted the countries’ own decisions on the\\nactual allocation of oil and salt. Here, by contrast, the\\nrequested remedy would be damages from Defendants—\\nwho are not associated with the Mexican government—\\n\\n\\n 6\\n The majority notes that “there are no allegations that the Mexican\\ngovernment has ruled on its juicio de lesividad.” Maj. op. at 17. That\\nmay be because in July 2016, Defendants alleged discrimination under\\nNAFTA and sought international arbitration. If the case moved forward,\\nthe current status of the juicio proceedings would presumably be\\ndiscoverable. At a minimum, the court should not infer that Mexico is no\\nlonger interested in nullifying the 2012 APA Ruling, or that Mexico is\\nchoosing to enforce it, simply because the juicio has not resolved.\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 39\\n\\narising from statements generally about the tax treatment of\\nsales of silver.\\n\\n In asserting that the “very nature” of this action could\\noffend Mexico, the majority quotes from Sabbatino: “An\\ninquiry by United States courts into the validity of an act of\\nan official of a foreign state under the law of the state . . . if\\nwrongly made[] would be likely to be highly offensive to the\\nstate in question.” Maj. op. at 22 (quoting Sabbatino,\\n376 U.S. at 415 n.17). Yet the majority omits the rest of the\\nfootnote:\\n\\n Were any test to be applied it would have to\\n be what effect the decree would have if\\n challenged in Cuba. If no institution of legal\\n authority would refuse to effectuate the\\n decree, its ‘formal’ status—here its argued\\n invalidity if not properly published in the\\n Official Gazette in Cuba—is irrelevant. It has\\n not been seriously contended that the judicial\\n institutions of Cuba would declare the decree\\n invalid.\\n\\nSabbatino, 376 U.S. at 415 n.17.\\n\\n The Sabbatino plaintiffs asked the Court not to enforce\\nthe state act because it would be invalid under Cuban law.\\nId. at 413. The Court rejected that argument—not because,\\nas the majority claims, a court can never apply the law of a\\nforeign state to a foreign act, but because the Cuban act “has\\nbeen fully executed within the foreign state.” Id. at 414.\\nNeither Sabbatino nor any other Supreme Court case\\nprohibits questioning a state act. And Sabbatino goes further,\\nrecognizing that evaluating a foreign act could be proper if\\n“seriously contended” that the foreign country would “refuse\\nto effectuate the decree” and would declare the act “invalid”\\n\\n40 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\nif challenged. That is, of course, precisely what Plaintiffs\\ncontend here. But, even more to the point, the issue here is\\nnot the actual validity of the APA Ruling—the issue is\\nwhether representations made (and not made) were false or\\nmisleading in violation of the laws of the United States. 7\\n\\n\\n 7\\n Looking at W.S. Kirkpatrick from an investor’s perspective proves\\nenlightening. Defendants obtain an important state contract through\\nbribery, illegal in Nigeria. Presume defendants then trumpet the contract\\nwithout mentioning the bribery. Stock skyrockets. Nigeria brings up the\\nbribery—stock plummets. Now, instead of a competitor suing under\\nRICO, imagine defendants’ investors suing for securities fraud, claiming\\nfalse and misleading statements and material omissions about the\\ncontract. The act of state doctrine is no more implicated by this scenario\\nthan by the facts of W.S. Kirkpatrick. No matter what Nigeria were to\\nultimately decide about the validity of the contract, the act of state\\ndoctrine would not insulate the American defendants from securities-\\nfraud liability based on their own affirmative statements and material\\nnon-disclosures. For this appeal, there is no difference between that\\nhypothetical and the facts alleged. Here, had Defendants trumpeted the\\n(alleged) use of the approving official’s brother, as well as certain other\\nfacts about the process used to obtain the APA Ruling, the shares\\nsimilarly wouldn’t have skyrocketed (or so Plaintiffs claim). The act of\\nstate doctrine is equally irrelevant in both scenarios.\\n\\n This hypothetical has played out in lower courts with no suggestion\\nthe act of state doctrine was implicated. In In re Petrobras Sec. Lit., 116\\nF. Supp. 3d 368, 372–73 (S.D.N.Y. 2015), “[p]laintiffs allege[d] that\\nPetrobras was at the center of a multi-year, multi-billion dollar bribery\\nand kickback scheme [implicating Brazilian officials], in connection\\nwith which defendants made false and misleading statements in violation\\nof the Securities Exchange Act of 1934, . . . the Securities Act of 1933,\\n. . . and Brazilian law.” The district court denied Petrobas’s motion to\\ndismiss. Similarly, in Knox v. Yingli Green Energy Holding Co. Ltd., the\\ndistrict court found statements about a Chinese government subsidy\\nprogram materially false and/or misleading because of widescale fraud\\nrelated to procuring the subsidies: “[T]here was always a material risk\\nthat the government would eventually take some sort of drastic measure\\nonce it discovered the scale of the fraud.” 242 F. Supp. 3d 950, 964 (C.D.\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 41\\n\\n The purpose of the Sabbatino factors was to “avoid\\nunquestioning judicial acceptance of the acts of foreign\\nsovereigns,” not to “expand[] judicial incapacities where\\nsuch acts are not directly (or even indirectly) involved.” W.S.\\nKirkpatrick, 493 U.S. at 409. Yet the majority’s holding\\nexpands the act of state doctrine far beyond the narrow\\n“principle of decision” mandated by the Supreme Court.\\n\\n IV.\\n\\n Because it upheld the district court’s act of state doctrine\\ndismissal, the majority does not address whether\\nDefendants’ statements were misleading. Maj. op. at 24 n.3.\\nI conclude that Plaintiffs sufficiently pleaded false or\\nmisleading statements to survive a motion to dismiss.\\n\\n To be actionable under the securities laws, a statement\\nmust be either objectively false or materially misleading.\\nBrody, 280 F.3d at 1006. Liability for non-disclosure of\\nmaterial information depends on whether disclosure was\\n“necessary in order to make the statements made, in the light\\nof the circumstances under which they were made, not\\nmisleading.” 17 C.F.R. § 240.10b-5. As discussed above, to\\nbe misleading, a statement must “affirmatively create an\\nimpression of a state of affairs that differs in a material way\\nfrom the one that actually exists.” Brody, 280 F.3d at 1006.\\n“[T]his materiality requirement is satisfied when there is a\\nsubstantial likelihood that the disclosure of the omitted fact\\nwould have been viewed by the reasonable investor as\\nhaving significantly altered the total mix of information\\n\\n\\nCal. 2017). The majority’s holding would insulate companies engaging\\nin misconduct abroad from liability to domestic shareholders, under\\ndomestic laws, for failing to disclose the misconduct and, as alleged here,\\ndirectly profiting from that failure to disclose.\\n\\n42 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\nmade available.” Matrixx Initiatives, Inc. v. Siracusano,\\n563 U.S. 27, 38 (2011) (internal quotation marks omitted).\\n\\n Defendants touted the 2012 APA Ruling as a\\ngamechanger without disclosing that its issuance might not\\nhold up to scrutiny. According to Plaintiffs, the new\\nadministration of the Mexican government—which was\\nelected on an anti-corruption platform—took one look at the\\nRuling and decided to make an example of it.\\n\\n Plaintiffs allege that Defendants “likely were aware that\\nits tax arrangements would be in the SAT’s cross-hairs\\nsooner or later,” and indeed, Defendants’ own exhibit shows\\nthat, at a minimum, Defendants knew Mexico had a problem\\nwith the 2012 APA Ruling before the juicio was filed and\\nbefore making several of the allegedly misleading\\nstatements. During meetings with Defendants, Mexico\\ncomplained about PEM’s tax arrangements, threatened to\\n“make an example” out of it, audited PEM for years covered\\nby the Ruling, and suspended the company from its list of\\nimporters and exporters in the summer of 2015. Yet\\nDefendants continued to reference the 2012 APA Ruling as\\nif it were renewable and not under threat, telling investors in\\nan SEC filing, “[i]n 2015 silver is expected to continue to be\\nsold under the [APA] on the same terms and there are no\\nknown changes in the application of Mexican tax laws\\nrelative to the APA Ruling, so the Company expects to\\nrecord revenues and pay taxes based on realized prices for\\nthe life of the San Dimas mine.”\\n\\n In August 2015, Mexico filed the juicio to nullify the\\nAPA Ruling retroactively. Yet Defendants filed a statement\\nwith the SEC in November 2015 about the application\\nprocess for renewing the Ruling and stating that “[t]he\\nCompany continues to evaluate alternatives to achieve long-\\nterm tax certainty including through engaging in a dialogue\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 43\\n\\nwith Mexican tax authorities.” Beyond Defendants’ own\\nstatements about the events prompting the juicio, Plaintiffs\\nallege that Defendants knew of the problems with the APA\\nRuling when they made allegedly false or misleading\\nstatements shortly after it was issued. Taking their\\nallegations as true, Defendants knowingly made statements\\nthat “create[d] an impression of a state of affairs that\\ndiffer[ed] in a material way from the one that actually\\nexists.” Brody, 280 F.3d at 1006.\\n\\n The boilerplate disclaimers (“[a]ssuming . . . there are no\\nchanges in the application of Mexican tax laws relative to\\nthe APA ruling . . .”) only mention risks in the abstract,\\ndespite a higher-than-normal probability that the Mexican\\ngovernment would seek to nullify the Ruling retroactively.\\nSee Berson v. Applied Signal Tech., Inc., 527 F.3d 982, 986\\n(9th Cir. 2008) (finding disclosures misleading where\\n“[n]othing alerts the reader that some of these risks may\\nalready have come to fruition”). In fact, in December 2013,\\nDefendant Conway, Primero’s CEO, told investors that the\\ndisclaimers only referred to changes “for the overall industry\\nin terms of tax rules,” and Defendants never backed away\\nfrom that, even as Mexico showed increasing hostility\\ntoward the tax arrangement. It is hard to see how\\nDefendants’ statements could not be misleading in this\\ncontext.\\n\\n V.\\n\\n The act of state doctrine “does not bestow a blank-check\\nimmunity upon all conduct blessed with some imprimatur of\\na foreign government.” Timberlane Lumber Co. v. Bank of\\nAm., 549 F.2d 597, 606 (9th Cir. 1976). As the Supreme\\nCourt observed in W.S. Kirkpatrick, “[c]ourts in the United\\nStates have the power, and ordinarily the obligation, to\\n\\n44 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\ndecide cases and controversies properly presented to them.”\\n493 U.S. at 409. The majority avoids that obligation today.\\n\\n The implications of this decision extend far beyond this\\ncase. The act of state doctrine is extraordinarily limited and\\nsparingly applied. The majority has expanded it so much that\\nwe can expect defendants to invoke it every time a case even\\ntouches on decisions of foreign states, and even if, as here,\\nthe relief sought is not invalidation of a foreign act of state.\\nThe complaint does not challenge state acts—it claims non-\\nstate actors profited from misrepresentations and willful\\nnon-disclosures.\\n\\n I would reverse the district court’s rulings that the act of\\nstate doctrine bars Plaintiffs’ action and that Plaintiffs failed\\nto adequately plead any materially false or misleading\\nstatements. I therefore respectfully dissent.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4438758/\", \"author_raw\": \"BENNETT, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"KIM MCLANE WARDLAW"},"judge2":{"kind":"string","value":"MARK J BENNETT"},"judge3":{"kind":"string","value":"WILLIAM K SESSIONS III"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4661505/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Royal Wulff Ventures LLC v. Primero Mining Corp.\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-17\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nROYAL WULFF VENTURES LLC, No. 17-56367\nLead Plaintiff; ROBERT E. COOK, as\nTrustee for the Robert E. Cook and D.C. No.\nPaula J. Brooks Living Trust Under 2:16-cv-01034-\nAn Agreement Dated 12/30/1998. BRO-RAO\nLead Plaintiff,\n Plaintiffs-Appellants,\n OPINION\n v.\n\nPRIMERO MINING CORP.; JOSEPH F.\nCONWAY; DAVID BLAIKLOCK;\nWENDY KAUFMAN; WADE NESMITH;\nDAVID DEMERS; GRANT EDEY; BRAD\nMARCHANT; ROBERT QUARTERMAIN;\nMICHAEL RILEY; ROHAN HAZELTON;\nTIMO JAURISTO; EDUARDO LUNA,\n Defendants-Appellees.\n\n Appeal from the United States District Court\n for the Central District of California\n Beverly Reid O’Connell, District Judge, Presiding\n\n Argued and Submitted March 4, 2019\n Pasadena, California\n\n Filed September 17, 2019\n\n2 ROYAL WULFF VENTURES V. PRIMERO MINING\n\n Before: Kim McLane Wardlaw and Mark J. Bennett,\n Circuit Judges, and William K. Sessions III, *\n District Judge.\n\n Opinion by Judge Wardlaw;\n Dissent by Judge Bennett\n\n\n SUMMARY **\n\n\n Securities Fraud / Act of State Doctrine\n\n The panel affirmed the district court’s dismissal of a\nsecurities fraud action as barred by the act of state doctrine\nbecause plaintiffs’ claims under the Securities Exchange Act\nof 1934 would require a United States court to pass judgment\non the validity of a 2012 ruling by the Mexican tax authority.\n\n Plaintiffs alleged that defendants failed to disclose legal\ndeficiencies in the tax ruling and sold shares knowing those\ndeficiencies existed. After a change in government in\nMexico, a challenge to the ruling was filed, but it remained\nvalid under Mexican law.\n\n The act of state doctrine bars suit where there is an\nofficial act of a foreign state performed within its own\nterritory and the relief sought or the defenses interposed in\nthe action would require a court in the United States to\n\n *\n The Honorable William K. Sessions III, United States District\nJudge for the District of Vermont, sitting by designation.\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\n ROYAL WULFF VENTURES V. PRIMERO MINING 3\n\ndeclare invalid the foreign sovereign’s official act. The\npanel held that plaintiffs’ claims would require a United\nStates court to determine whether the Mexican tax\nauthority’s ruling was properly issued under Mexican law.\nTo determine whether defendants misled investors with an\nintent to deceive, a court would have to decide whether, and\nto what extent, the ruling complied with Mexico’s Income\nTax Law, as well as various other Mexican laws governing\nthe ethical obligations of public servants in Mexico.\nAgreeing with other circuits, the panel held that the district\ncourt was not required to consider other factors, known as\nthe Sabbatino factors. Further, those factors would not have\nweighed against application of the act of state doctrine. In\nsum, the mandatory elements for applying the act of state\ndoctrine were satisfied, and the policies underlying the\ndoctrine weighed in favor of applying it to bar plaintiffs’\nclaims.\n\n Dissenting, Judge Bennett wrote that the majority\nmisapplied the act of state doctrine, and he believed that\ndefendants’ statements were materially false or misleading.\nJudge Bennett wrote that, to find for plaintiffs, a court would\nonly need to determine whether, at the time the defendants\nmade the alleged misrepresentations, they knew that there\nwas a real risk that the Mexican government would nullify\nthe tax ruling—not whether the ruling was actually invalid.\nJudge Bennett would reverse the district court’s rulings that\nthe act of state doctrine barred plaintiffs’ action and that\nplaintiffs failed to adequately plead any materially false or\nmisleading statements.\n\n4 ROYAL WULFF VENTURES V. PRIMERO MINING\n\n COUNSEL\n\nRichard W. Gonnello (argued), Katherine M. Lenahan, and\nMegan M. Sullivan, Faruqi & Farugi LLP, New York, New\nYork, for Plaintiffs-Appellants.\n\nDaniel M. Perry (argued) and James D. Whooley, Milbank\nTweed Hadley & McCloy LLP, Los Angeles, California, for\nDefendants-Appellees.\n\n\n OPINION\n\nWARDLAW, Circuit Judge:\n\n We have long recognized that the courts of one country\nwill not sit in judgment of the acts of a foreign sovereign\ncommitted within its own territory. The act of state doctrine\nlimits judicial interference in foreign relations by precluding\nadjudication of the sovereign acts of other nations in United\nStates courts. Because Plaintiffs’ claims under the Securities\nExchange Act of 1934 would require a United States court\nto pass judgment on the validity of a 2012 ruling by the\nUnited Mexican States’ (Mexico) tax authority, the Servicio\nde Administraciόn Tributaria, they are barred by the act of\nstate doctrine. We therefore affirm the district court’s\ndismissal of Plaintiffs’ putative class action complaint.\n\n I.\n\n Plaintiffs Royal Wulff Ventures LLC and Robert E.\nCook, as trustee of the Robert E. Cook and Paula J. Brooks\nLiving Trust Under An Agreement Dated 12/30/1988\n(collectively Plaintiffs), filed a putative class action in the\nCentral District of California, alleging violations of the\nSecurities Exchange Act of 1934 (Exchange Act) against\n\n ROYAL WULFF VENTURES V. PRIMERO MINING 5\n\nPrimero Mining Corporation (Primero) and twelve other\nnamed defendants.\n\n According to the operative complaint, Primero is a\nCanadian mining company whose principal asset at the\nbeginning of the class period (October 5, 2012 to February\n3, 2016) was the San Dimas gold-silver mine in Tayoltita,\nDurango, Mexico. The San Dimas mine “has a large silver\nreserve [that] can be mined at a relatively low cost,” and was\npreviously owned and operated by two companies that are\nnot parties to the present action: Wheaton River Minerals\nLtd. and Goldcorp Inc. After Primero purchased the San\nDimas mine from Goldcorp Inc. in August 2010 for\n$510 million, Primero’s Mexican subsidiary, Primero\nEmpresa Minera, S.A. de C.V. (PEM) owned and operated\nthe San Dimas mine. Primero also acquired a separate\nsubsidiary from Goldcorp Inc., which it renamed Silver\nTrading Barbados.\n\n In connection with the August 2010 purchase of the San\nDimas mine, Primero also assumed the obligations of two\nseparate amended contracts: the Internal Silver Purchase\nAgreement 2004 (Internal SPA) and External Silver\nPurchase Agreement 2004 (External SPA). As a result, PEM\nwas contractually bound to sell to Silver Trading Barbados,\nanother Primero subsidiary, “the first 3.5 million ounces per\nyear of silver produced by the San Dimas mine, plus 50% of\nthe excess silver above this amount” at the market rate per\nounce of silver (Spot Price) for the first four years after\nPrimero acquired the San Dimas mine. Silver Trading\nBarbados, in turn, was bound by these contracts to “sell that\nsilver to [unaffiliated Silver Wheaton (Caymans) Ltd.] at the\nlesser of $4.04 per ounce (adjusted by 1% per year) and Spot\nPrices.” Primero also agreed that after the first four years, it\nwould sell “the first 6 million ounces per year of silver\n\n6 ROYAL WULFF VENTURES V. PRIMERO MINING\n\nproduced by the San Dimas mine, plus 50% of the excess\nsilver above this amount,” to Silver Wheaton (Caymans)\nLtd., “at the lesser of $4.20 per ounce (adjusted by 1% per\nyear) and Spot Prices for the life of the mine.” During this\nperiod, PEM “computed income taxes in Mexico based on\nselling all silver produced at the San Dimas mine to [Silver\nTrading Barbados] at Spot Prices as provided in the Internal\nSPA.” Thus, while Primero was required to sell the silver to\nSilver Wheaton (Caymans) Ltd. at around $4 per ounce, it\nwas required under Mexican law to pay taxes at the\nsignificantly higher Spot Prices at which PEM sold the silver\nto its sister subsidiary. The complaint alleges that Mexico\nthen allowed six transfer pricing methods for transactions\nwith non-resident related parties, which PEM was required\nto follow with respect to sales by PEM to Silver Trading\nBarbados under Mexico’s Income Tax Law.\n\n During the existence of these contracts the Spot Price per\nounce of silver began to rise. At the outset of the\nagreements, the price was around $6.47 per ounce, but by\nMarch 2011, the Spot Price of silver had increased to nearly\n$35 per ounce. The Internal SPA and External SPA\nagreements thus led to a significant tax burden for Primero:\nin the first quarter of 2011, for instance, Primero “recorded\na net loss of $7.895 million after paying $12.9 million in\nincome taxes on pre-tax income of just $5.05 million.”\n\n Plaintiffs allege that Primero devised a tax evasion\nscheme to reduce this significant tax liability. This alleged\nscheme involved two steps. First, Primero restructured its\ncompany and amended the Internal SPA “so that the transfer\nprice (i.e., the sale price) from PEM to [its sister subsidiary,\nSilver Trading Barbados] was no longer the significantly\nhigher Spot Price of silver, but rather the approximately $4\nper ounce [unaffiliated Silver Wheaton (Caymans) Ltd.]\n\n ROYAL WULFF VENTURES V. PRIMERO MINING 7\n\nPurchase Price.” And second, on October 17, 2011, a few\ndays after amending the Internal SPA, Primero submitted an\n“advance pricing agreement” (APA) application to Mexico’s\ntax authority, the Servicio de Administraciόn Tributaria\n(SAT), seeking approval of its new transfer pricing\nmethodology resulting from its amendment to the Internal\nSPA.\n\n According to the operative complaint, an APA is a\n“prospective agreement regarding the taxpayer’s transfer\nprices” through which “taxpayers [in Mexico can] avoid\nfuture disputes over transfer pricing.” “APA Rulings are\nvalid for five years, spanning the fiscal year in which they\nare acquired, the immediately preceding year, and the\nfollowing three fiscal years.” If an APA Ruling is not\nproperly grounded in law or fact, “it can be retroactively\nannulled by Mexico’s Tax Court through a proceeding\ninitiated by the SAT, known as a juicio de lesividad.”\n\n The operative complaint also alleges that “APAs are\nhandled exclusively by the SAT’s Transfer Pricing Audit\nAdministration,” and that “[u]nder Mexican law, the head of\nthe Transfer Pricing Audit Administration, known as the\nCentral Administrator for Transfer Pricing Audits, is one of\na few people in the Transfer Pricing Administration who\nmay decide [APAs] and in any event is in charge of the\nremaining few [people] who can [decide APAs].”\n\n As part of Primero’s APA application, the company\nhired an attorney named Christian Natera, whose firm,\nNatera Consultores, S.C., specialized in transfer pricing. At\nthe time, Christian Natera’s brother, Luis Natera, served as\nthe Central Administrator for Transfer Pricing Audits. In\nthis position, Christian Natera’s brother was “one of a few\npeople in the Transfer Pricing Administration who [could]\ndecide [APAs] and in any event [was] in charge of the\n\n8 ROYAL WULFF VENTURES V. PRIMERO MINING\n\nremaining few [people] who [could decide APAs].”\nThrough its APA application, Primero allegedly sought\napproval of a transfer pricing methodology known as the\n“comparable uncontrolled price” or “CUP” method, which\nwould allow it to pay taxes based on the approximately $4\nper ounce unaffiliated Silver Wheaton (Caymans) Ltd.\nPurchase Price for silver extracted from the San Dimas mine,\nrather than the Spot Price. Plaintiffs allege that the CUP\nmethod is one of the six Mexican-approved transfer pricing\nmethods; however, they also contend that Primero’s APA, as\nactually approved, failed to comply with the CUP method.\n\n On October 5, 2012, Primero issued a press release\nannouncing that PEM “ha[d] received a positive ruling from\nthe Mexican tax authorities . . . .” The release described the\nruling: “The ruling confirms that [PEM] appropriately\nrecords revenue and taxes from sales under the silver\npurchase agreement at realized prices rather than spot prices\neffective from August 6, 2010.” Thus, under the ruling, the\nMexican tax authority allowed PEM to pay taxes based on\nthe Silver Wheaton (Caymans) Ltd. Purchase Price, rather\nthan the Spot Price. According to Plaintiffs, this\nannouncement “shocked the markets,” and resulted in\nPrimero’s stock increasing by 36%, closing at $7.37 per\nshare that same day.\n\n Following this positive ruling by the SAT, Primero made\na number of public statements that Plaintiffs allege were\nmisleading in violation of U.S. securities laws. The first set\nof statements Plaintiffs identify concerns the effect that the\nSAT’s 2012 APA Ruling would have on Primero’s cash flow\nand tax position. While Plaintiffs catalogue a significant\nnumber of these statements by Primero in their complaint,\nthe district court found the following statements\nrepresentative:\n\nROYAL WULFF VENTURES V. PRIMERO MINING 9\n\n(1) Primero’s October 5, 2012 press release:\n “Primero Mining Corp. . . . announced\n today that [PEM] has received a positive\n ruling from the Mexican tax authorities\n (Servicio de Administracion Tributaria)\n on its Advance Pricing Agreement\n (“APA”) filing made in October 2011.\n The ruling confirms that [PEM]\n appropriately records revenues and taxes\n from sales under the silver purchase\n agreement at realized prices rather than\n spot prices effective from August 6,\n 2010. Under Mexican tax law, an APA\n ruling is generally applicable for up to a\n five year period. For Primero this applies\n to the fiscal years 2010 to 2014.\n Assuming the Company continues to sell\n its silver from its San Dimas mine on the\n same terms and there are no changes in\n the application of Mexican tax laws\n relative to the APA ruling, the Company\n expects to pay taxes on realized prices for\n the life of the San Dimas mine.”\n\n(2) Defendant Conway: “We had a\n significant tax burden, which we have\n just recently got cleared of, but more\n importantly I think as well now that that\n is done, what else are we doing?”\n\n(3) Primero’s February 13, 2014 Form 6-K:\n “The Company has taken the position that\n if the Mexican tax laws relative to the\n APA ruling do not change and the\n Company does not change the structure\n\n10 ROYAL WULFF VENTURES V. PRIMERO MINING\n\n of the silver purchase agreement, the\n ability of the Company to continue to pay\n taxes in Mexico based on realized prices\n of silver will continue for the life of the\n San Dimas mine. Should this judgment\n change, there would be a material change\n in both the income and deferred tax\n position recognized by the Company.”\n\n Plaintiffs also allege that Primero made various false and\nmisleading public statements representing that its quarterly\nand annual financial statements were “prepared in\naccordance with International Financial Reporting Standards\nas issued by the International Accounting Standards Board,\nand reflect management’s best estimates and judgment based\non information currently available.” In addition to making\nthese statements, Primero allegedly used its newly generated\nwealth to acquire two companies, Cerro Resources NL and\nBrigus Gold Corp., selling 41,340,664 of its own shares in\nthe process.\n\n But, according to Plaintiffs, several legal deficiencies in\nthe SAT’s 2012 APA Ruling were confirmed after a new\ngovernment administration came to power in Mexico. The\nnew government, led by President Enrique Peña Nieto and\nmembers of the Institutional Revolutionary Party, began to\ncrack down on suspected tax avoidance schemes. Plaintiffs\nallege that by November 2013, Luis Natera had been found\nadministratively liable for failing to recuse himself from\nPrimero’s APA application, and was temporarily suspended\nfrom working in the public sector. Plaintiffs also allege that\nin August 2015, the SAT filed a juicio de lesividad against\nPEM seeking to retroactively nullify the 2012 APA Ruling.\nWhen Primero issued a press release in February 2016\nannouncing that the SAT had served it with a juicio de\n\n ROYAL WULFF VENTURES V. PRIMERO MINING 11\n\nlesividad challenging the 2012 APA Ruling, Primero’s\nshares fell “$0.74 per share, or over 28%, to close at $1.89\nper share on February 4, 2016.” However, although a juicio\nde lesividad was filed, its contents, and the reasons for which\nit was filed, are not public. Moreover, Plaintiffs do not\ncontest that the 2012 APA Ruling remains valid under\nMexican law.\n\n Although Plaintiffs concede that the contents of the\njuicio de lesividad and the reasons for which it was filed are\nnot public, Plaintiffs allege “[u]pon information and belief\n. . . that the juicio de lesividad was filed for the following\nreasons: (i) Luis Natera improperly failed to recuse himself\nfrom Primero’s APA application given that his brother,\nChristian Natera, was an authorized representative of\n[Primero;] (ii) the APA Ruling approved a transfer pricing\nmethodology other than the CUP methodologies that were\nproposed by Primero[;] (iii) the APA Ruling did not conduct\nthe requisite comparison of the factors set forth in Article\n215 of [Mexico’s Income Tax Law] that are used to\ndetermine whether a transaction complies with the [arms\nlength principle;] and (iv) Primero’s proposed CUP\nmethodologies were flawed anyway because the transaction\nthat Primero attempted to use as its comparable independent\ntransaction . . . was actually a related party transaction and\nwas therefore an inappropriate comparison transaction . . . .”\n\n Plaintiffs allege that in failing to disclose these alleged\nlegal deficiencies in the 2012 APA Ruling, and in selling\nPrimero shares knowing these legal deficiencies existed,\nPrimero violated Rule 10b-5 and sections 10(b), 20A of the\nExchange Act. Plaintiffs also allege violations of Rule 10b-\n5 and sections 10(b), 20(a) of the Exchange Act against\nvarious “Officer Defendants,” as well as violations of\n\n12 ROYAL WULFF VENTURES V. PRIMERO MINING\n\nsection 20(a) of the Exchange Act against various “Director\nDefendants” and Defendant Joseph Conway.\n\n Primero moved to dismiss the Plaintiffs’ complaint\nbased on the act of state doctrine and failure to state a claim.\nThe district court dismissed the action as barred by the act of\nstate doctrine, and ruled in the alternative that Plaintiffs had\nfailed to adequately plead any materially false or misleading\nstatements. Plaintiffs timely appeal.\n\n II.\n\n “[W]e review the district court’s decision concerning the\nact of state doctrine de novo.” Liu v. Republic of China,\n892 F.2d 1419, 1424 (9th Cir. 1989). “When the doctrine is\nraised on a motion to dismiss, we take the allegations in the\ncomplaint as true and view them in the light most favorable\nto the plaintiffs.” Sea Breeze Salt, Inc. v. Mitsubishi Corp.,\n899 F.3d 1064, 1068 (9th Cir. 2018) (citing Clayco\nPetroleum Corp. v. Occidental Petroleum Corp., 712 F.2d\n404, 406 (9th Cir. 1983) (per curiam)).\n\n III.\n\n While the act of state doctrine was once viewed as “an\nexpression of international law, resting upon ‘the highest\nconsiderations of international comity and expediency,’”\nW.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int’l,\n493 U.S. 400, 404 (1990) (quoting Oetjen v. Cent. Leather\nCo., 246 U.S. 297, 303–04 (1918)), we have come to view\nthe doctrine “as a consequence of domestic separation of\npowers, reflecting ‘the strong sense of the Judicial Branch\nthat its engagement in the task of passing on the validity of\nforeign acts of state may hinder’ the conduct of foreign\naffairs,” id. (quoting Banco Nacional de Cuba v. Sabbatino,\n376 U.S. 398, 423 (1964)).\n\n ROYAL WULFF VENTURES V. PRIMERO MINING 13\n\n “As a doctrinal matter, the ‘classic statement’ of the act\nof state doctrine is that ‘[e]very sovereign State is bound to\nrespect the independence of every other sovereign State, and\nthe courts of one country will not sit in judgment on the acts\nof the government of another done within its own territory.’”\nSea Breeze Salt, 899 F.3d at 1069 (quoting Credit Suisse v.\nU.S. Dist. Court for Cent. Dist. of Cal., 130 F.3d 1342, 1346\n(9th Cir. 1997)). “In its modern formulation, the doctrine\nbars suit where ‘(1) there is an official act of a foreign\nsovereign performed within its own territory; and (2) the\nrelief sought or the defense interposed [in the action would\nrequire] a court in the United States to declare invalid the\n[foreign sovereign’s] official act.’” Id. (alterations in\noriginal) (quoting Credit Suisse, 130 F.3d at 1346). “[E]ven\nwhen [these] two mandatory elements are satisfied, courts\nmay appropriately look to additional factors [i.e., the policies\nunderlying the act of state doctrine] to determine whether\napplication of the act of state doctrine is justified.” Id.\nat 1072–73 (citing W.S. Kirkpatrick, 493 U.S. at 409).\n\n A. Invalidation of an Official Act of a Foreign\n Sovereign\n\n The district court correctly held that all of Plaintiffs’\nExchange Act claims are barred by the act of state doctrine\nbecause they would require a United States court to\ndetermine whether the Mexican tax authority’s 2012 APA\nRuling was properly issued under Mexican law. Plaintiffs\ndo not challenge the conclusion that the 2012 APA Ruling\nissued by Mexico’s tax authority constitutes a “public and\ngovernmental act[] of [a] sovereign state,” taken within its\nown territory, Alfred Dunhill of London, Inc. v. Republic of\nCuba, 425 U.S. 682, 695 (1976) (plurality opinion), but\ninstead argue that the act of state doctrine applies only where\nUnited States courts would be required to declare the foreign\n\n14 ROYAL WULFF VENTURES V. PRIMERO MINING\n\ngovernment’s action “null and void,” not unlawful in any\nother way. But our precedent dictates otherwise. We have\nlong recognized that the act of state doctrine applies where\nresolution of a plaintiff’s claims would require a court to\nevaluate a foreign sovereign’s compliance with its own laws.\nSee West v. Multibanco Comermex, S.A., 807 F.2d 820, 828\n(9th Cir. 1987) (“The evaluation by one sovereign of foreign\nofficers’ compliance with their own laws would, at least in\nthe absence of the foreign sovereign’s consent, intrude upon\nthat state’s coequal status.”).\n\n In Kirkpatrick, the Supreme Court rejected application\nof the act of state doctrine because “the factual predicate for\napplication . . . d[id] not exist.” 493 U.S. at 405. It went on\nto state: “Nothing in the present suit requires the Court to\ndeclare invalid, and thus ineffective . . . the official act of a\nforeign sovereign.” Id. (citation omitted). The Court further\nreasoned that “[a]ct of state issues only arise when a court\nmust decide—that is, when the outcome of the case turns\nupon—the effect of official action by a foreign sovereign.”\nId. at 406; see also Sabbatino, 376 U.S. at 415 n.17 (“An\ninquiry by United States courts into the validity of an act of\nan official of a foreign state under the law of that state would\nnot only be exceedingly difficult but, if wrongly made,\nwould be likely to be highly offensive to the state in\nquestion.”).\n\n Plaintiffs rely on Kirkpatrick to support their argument\nthat the act of state doctrine is inapplicable here because their\nclaims do not require United States courts to decide whether\nthe Mexican tax authority’s 2012 APA Ruling was valid. In\nKirkpatrick, plaintiffs brought federal and state civil RICO\nclaims, as well as claims under the Robinson-Patman Act of\n1936, 15 U.S.C. § 13, against a competitor which allegedly\npaid bribes to Nigerian officials in order to obtain a contract\n\n ROYAL WULFF VENTURES V. PRIMERO MINING 15\n\nfrom the Nigerian government. 493 U.S. at 401–04. The\nKirkpatrick defendants argued that the facts required to\ndemonstrate they paid bribes to Nigerian officials to obtain\ncontracts would also demonstrate that the contracts violated\nNigerian law. Id. at 406. The Court disagreed, holding that\n“[r]egardless of what the court’s factual findings may\nsuggest as to the legality of the Nigerian contract, its legality\nis simply not a question to be decided in the present suit, and\nthere is thus no occasion to apply the rule of decision that the\nact of state doctrine requires.” Id. The Court cited Sharon\nv. Time, Inc., 599 F. Supp. 538, 546 (S.D.N.Y. 1984), to\nemphasize that “[t]he issue in this litigation is not whether\n[the alleged] acts are valid, but whether they occurred.” See\nW.S. Kirkpatrick, 493 U.S. at 406.\n\n Here, unlike in Kirkpatrick, to conclude that Primero\nmisled investors, a court must decide whether, and to what\nextent, the 2012 APA Ruling complies with Mexico’s\nIncome Tax Law, as well as various other Mexican laws\ngoverning the ethical obligations of public servants in\nMexico. Here, it is not simply a question of whether a given\nact—in Kirkpatrick a bribe—occurred; the questions\nPlaintiffs raise are as to the legality of the 2012 APA Ruling\nitself, and what defendants knew about its validity or not.\n\n To prevail on their securities fraud claims under section\n10(b) and Rule 10b-5, Plaintiffs must show (1) a material\nmisrepresentation or omission; (2) scienter; (3) a connection\nbetween the misrepresentation or omission and the purchase\nor sale of a security; (4) reliance; (5) economic loss; and\n(6) loss causation. See Or. Pub. Emps. Ret. Fund v. Apollo\nGrp. Inc., 774 F.3d 598, 603 (9th Cir. 2014) (citing\nStoneridge Inv. Partners, LLC v. Sci.-Atlanta, Inc., 552 U.S.\n148, 157 (2008)). “[S]cienter refers to ‘a mental state\nembracing intent to deceive, manipulate, or defraud,’”\n\n16 ROYAL WULFF VENTURES V. PRIMERO MINING\n\nMerck & Co., Inc. v. Reynolds, 559 U.S. 633, 648 (2010)\n(citing Ernst & Ernst v. Hochfelder, 425 U.S. 185, 194 n.12\n(1976)), and may also refer to deliberate recklessness, “a\nform of intentional or knowing misconduct.” Zucco\nPartners, LLC v. Digimarc Corp., 552 F.3d 981, 991 (9th\nCir. 2009) (citation omitted). Plaintiffs accordingly must\nshow that Primero “made a material misstatement with an\nintent to deceive—not merely innocently or negligently.”\nMerck & Co., 559 U.S. at 648–49 (citing Tellabs, Inc. v.\nMakor Issues & Rights, Ltd., 551 U.S. 308, 319 (2007)).\nPlaintiffs’ claims under sections 20A, 20(a) of the Exchange\nAct, in turn, depend on predicate violations of either section\n10(b) or Rule 10b-5. See In re VeriFone Holdings, Inc. Sec.\nLitig., 704 F.3d 694, 710–11 (9th Cir. 2012) (“To prevail on\nits claims for violations of § 20A, [Plaintiff] must first\nsufficiently allege a violation of § 10(b) or Rule 10b-5.”\n(citing Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1035\nn.15 (9th Cir. 2002))); see also Zucco Partners, LLC v.\nDigimarc Corp., 552 F.3d 981, 990 (9th Cir. 2009) (“Section\n20(a) claims may be dismissed summarily . . . if a plaintiff\nfails to adequately plead a primary violation of section\n10(b).”). In total, Plaintiffs identify two categories of\nallegedly materially misleading statements: (1) statements\nabout the 2012 APA Ruling and its impact on Primero’s\nfinances; and (2) statements that Primero’s quarterly and\nannual statements were prepared in accordance with\nInternational Financial Reporting Standards. Plaintiffs\nallege that in making both categories of statements,\ndefendants knowingly failed to disclose legal deficiencies\nunder Mexican tax law in the 2012 APA Ruling that could\nrender it vulnerable to non-renewal or nullification. The\nlogic is compelling: United States courts would be required\nto decide whether there were in fact legal deficiencies under\nMexican law that would nullify the APA Ruling—in other\nwords invalidate it—that could be known and were known\n\n ROYAL WULFF VENTURES V. PRIMERO MINING 17\n\nas such to defendants when they made their public\nstatements. By contrast, in Kirkpatrick, United States courts\nwere not called upon to decide whether the Nigerian contract\nwas legally deficient under Nigerian law due to the bribes;\nall they were asked to decide is whether bribes were made. 1\n\n As Plaintiffs also acknowledge, the 2012 APA Ruling\nthat they contend is so legally flawed as to render Primero’s\nstatements about it misleading, remains lawful and valid\nunder Mexican law. And although Plaintiffs allege that the\nMexican government has filed a juicio de lesividad to nullify\nthe 2012 APA Ruling, according to the complaint those\nproceedings are ongoing, and there are no allegations that\nthe Mexican government has ruled on its juicio de lesividad.\n\n Under these circumstances, allowing Plaintiffs’\nExchange Act claims to proceed would require “[t]he\nevaluation by one sovereign of foreign officers’ compliance\nwith their own laws . . . in the absence of the foreign\nsovereign’s consent,” because “[t]he acts or omissions of the\nsovereign,” and the compliance of Mexican officials with\nMexican law “is the determinative issue on [Plaintiffs’]\nclaim[s].” West, 807 F.2d at 828. For instance, Plaintiffs\nallege that the 2012 APA Ruling was vulnerable to legal\n\n 1\n The dissent seems to misapprehend this aspect of a section 10(b)\nand Rule 10b-5 claim. To prevail, Plaintiffs must demonstrate an\nintentional or knowing material misleading fact or omission. See Merck\n& Co., 559 U.S. at 648–49. The only way Primero’s statements were\nknowingly or intentionally misleading is if the alleged unethical behavior\nof a Mexican official rendered Mexico’s 2012 APA Ruling invalid.\nEven taking Plaintiffs’ allegations as true, and assuming that Luis Natera\nacted unethically, Plaintiffs still must prove both that this conduct\ninvalidated the 2012 APA Ruling under Mexican law as a result and that\nPrimero knew that the APA Ruling was so invalidated at the time of its\nstatements.\n\n18 ROYAL WULFF VENTURES V. PRIMERO MINING\n\nchallenge, and could therefore be nullified, under two\nseparate articles of Mexico’s Income Tax Law, as well as at\nleast two other articles of Mexico’s conflict of interest laws.\nBut for a court to credit Plaintiffs’ theories, and conclude\nthat Primero knowingly failed to disclose these alleged\nmaterial legal deficiencies, that court will necessarily be\nrequired to determine whether those alleged deficiencies\nwere in fact present in the APA proceedings, should have led\nthe Mexican tax authority to disapprove the APA in the first\nplace, or resulted in an APA Ruling that was subject to\nnullification. This sort of review of a foreign government’s\ndecision is precisely what the act of state doctrine precludes.\nBecause Plaintiffs’ Exchange Act claims would require a\ncourt to evaluate Mexico’s tax authority’s compliance with\nMexican law, their claims would require “a court in the\nUnited States to declare invalid the official act of a foreign\nsovereign performed within its own territory.” W.S.\nKirkpatrick, 493 U.S. at 405. The second element for\napplication of the act of state doctrine is therefore met. 2\n\n\n 2\n While the dissent focuses extensively on the history of the Supreme\nCourt’s act of state doctrine jurisprudence, it fails to engage in the\ndoctrinal analysis required in this case. As we have previously\nrecognized, the act of state doctrine bars suit where “(1) there is an\nofficial act of a foreign sovereign performed within its own territory; and\n(2) the relief sought or the defense interposed [in the action] would\nrequire a court in the United States to declare invalid the [foreign\nsovereign’s] official act.” Sea Breeze Salt, 899 F.3d at 1069 (alterations\nin original) (citation omitted). Here, applying our precedent, we hold\nthat the second element of the act of state doctrine is satisfied where the\nvalidity of a public and governmental act—Mexico’s 2012 APA\nRuling—under Mexico’s own, myriad applicable laws is outcome-\ndeterminative of Plaintiffs’ claims. See West, 807 F.2d at 828. This\nholding is squarely consistent with W.S. Kirkpatrick, which affirmed,\nrather than reversed, the principle acknowledged in West that the act of\nstate doctrine applies where a court must decide the legality of a foreign\n\n ROYAL WULFF VENTURES V. PRIMERO MINING 19\n\n B. The Sabbatino Factors\n\n In Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398\n(1964), the Supreme Court acknowledged three factors for\ncourts to consider to ensure that application of the act of state\ndoctrine “reflect[s] the proper distribution of functions\nbetween the judicial and political branches of the\nGovernment on matters bearing upon foreign affairs.”\n376 U.S. at 427–28. First, “the greater the degree of\ncodification or consensus concerning a particular area of\ninternational law, the more appropriate it is for the judiciary\nto render decisions regarding it . . . .” Id. at 428. Second,\n“the less important the implications of an issue are for our\nforeign relations, the weaker the justification for exclusivity\nin the political branches.” Id. And finally, “[t]he balance of\nrelevant considerations may also be shifted if the\ngovernment which perpetrated the challenged act of state is\nno longer in existence . . . .” Id. As the Court later stated,\n\nsovereign’s actions under that sovereign’s laws. See W.S. Kirkpatrick,\n493 U.S. at 406.\n\n The dissent further asserts that Plaintiffs’ Exchange Act claims do\nnot require us to determine the legality of the 2012 APA Ruling. See,\ne.g., Dissent at 34 (“Plaintiffs need not show . . . that the 2012 APA\nRuling was illegal or invalid.”). But in order for us to determine whether\nor not Defendants’ statements or omissions about the legal validity of the\n2012 APA Ruling were materially false or misleading, we must\nnecessarily determine in the first instance (1) whether the 2012 APA\nRuling did in fact suffer from legal defects under Mexican law, and\n(2) whether Defendants’ statements or omissions accurately reflected\nthose purported legal defects under Mexican law. Despite its exhaustive\nreview, the dissent fails to explain how Plaintiffs’ claims can be resolved\nwithout first determining whether the 2012 APA Ruling suffered from\nlegal deficiencies under Mexican law, and similarly fails to show how\nthe second element of the act of state doctrine is not met where a foreign\nsovereign’s compliance with its own laws is the determinative issue on\nPlaintiffs’ claims, as here.\n\n20 ROYAL WULFF VENTURES V. PRIMERO MINING\n\n“in Sabbatino . . . we observed that sometimes, even though\nthe validity of the act of a foreign sovereign within its own\nterritory is called into question, the policies underlying the\nact of state doctrine may not justify its application.” W.S.\nKirkpatrick, 493 U.S. at 409.\n\n Plaintiffs contend that the district court erred by failing\nto conduct an analysis of the Sabbatino factors. But neither\nour circuit nor the Supreme Court has required explicit\nconsideration of the Sabbatino factors in properly applying\nthe act of state doctrine. See Sea Breeze Salt, 899 F.3d\nat 1072–73 (“[E]ven when the two mandatory elements are\nsatisfied, courts may appropriately look to additional factors\nto determine whether application of the act of state doctrine\nis justified.” (emphasis added) (citing W.S. Kirkpatrick,\n493 U.S. at 409)). This accords with the approach taken by\nour sister circuits. See, e.g., Konowaloff v. Metro. Museum\nof Art, 702 F.3d 140, 146 (2d Cir. 2012) (“[A] court may\nproperly grant a motion to dismiss on the basis of [the act of\nstate doctrine] when its applicability is shown on the face of\nthe complaint.”), cert. denied, 570 U.S. 906 (2013); see also\nWorld Wide Minerals, Ltd. v. Republic of Kazakhstan,\n296 F.3d 1154, 1164–67 (D.C. Cir. 2002) (affirming the\ndistrict court’s dismissal under the act of state doctrine\nwhere the district court did not address the Sabbatino factors,\nbut the case was “plainly [one] in which the policies\nunderlying the doctrine ‘justify its application’” (quoting\nW.S. Kirkpatrick, 493 U.S. at 409)), cert. denied, 537 U.S.\n1187 (2003). Because this is a case in which the policies\nunderlying the act of state doctrine justify its application, the\ndistrict court did not err in declining to specifically address\neach Sabbatino factor. And even if the district court had\ngone on to address those factors, they would not have\nweighed against applying the act of state doctrine.\n\n ROYAL WULFF VENTURES V. PRIMERO MINING 21\n\n With respect to “the degree of codification or consensus\nconcerning a particular area of international law,”\nSabbatino, 376 U.S. at 428, Plaintiffs argue that there is a\nhigh degree of international consensus as to the appropriate\nuse of the arm’s length principle for transfer pricing\nmethodologies, rendering review of the 2012 APA Ruling\nappropriate. While Plaintiffs cite to guidelines on transfer\npricing published by the Organisation for Economic Co-\noperation and Development (OECD) in support of their\nclaim of international consensus on the arm’s length\nprinciple, these guidelines do not affect the issue underlying\nPlaintiffs’ claims: that resolving their claims would require\na court to determine whether the Mexican government\nviolated its own tax laws in issuing the 2012 APA Ruling.\nPlaintiffs’ assertion that the 2012 APA Ruling failed to\ncomply with the arm’s length principle is simply a\nrephrasing of their assertion that the 2012 APA Ruling failed\nto comply with Mexico’s Income Tax Law. The SAT, in its\nruling, approved of a transfer pricing methodology for PEM,\nconcluding that this methodology complied with Article 215\nof Mexico’s Income Tax Law. Article 215, according to\nPlaintiffs, “sets forth the [arm’s length principle], providing\nthat corporate taxpayers dealing with foreign related parties\nare required to determine their gross income and allowable\ndeductions by using the prices and consideration that would\nhave been used with or between independent parties in\ncomparable transactions.” As such, guidelines published by\nthe OECD as to the appropriate use of the arm’s length\nprinciple have no effect on the requirement inherent in\nPlaintiffs’ claims that a court in the United States reevaluate\nthe Mexican government’s compliance with its own tax\nlaws. Because of this, the degree of international consensus\nas to the arm’s length principle does not affect our\nconclusion that the act of state doctrine applies.\n\n22 ROYAL WULFF VENTURES V. PRIMERO MINING\n\n Second, Plaintiffs’ claims carry significant implications\nfor U.S. foreign relations because the subject of the 2012\nAPA Ruling is how Mexico taxes transfers of silver, a\nnatural resource extracted in Mexico. We have repeatedly\nrecognized that where an action challenges a foreign\nsovereign’s decisions about how to exploit its own natural\nresources, that action “would be inherently offensive to the\nprinciple of co-equality among international sovereigns[.]”\nSea Breeze Salt, 899 F.3d at 1073; see also Int’l Ass’n of\nMachinists and Aerospace Workers, (IAM) v. OPEC,\n649 F.2d 1354, 1361 (9th Cir. 1981) (“[T]he granting of any\nrelief would in effect amount to an order from a domestic\ncourt instructing a foreign sovereign to alter its chosen\nmeans of allocating and profiting from its own valuable\nnatural resources.”). Here, were a United States court to\nreview the 2012 APA Ruling, and attempt to determine\nwhether the 2012 APA Ruling complied with Mexico’s tax\nlaws, it would be instructing a foreign sovereign both on how\nit should tax and regulate silver extracted in Mexico, and on\nhow to do so in compliance with the foreign sovereign’s own\nlaws. The “very nature” of that action would raise “[t]he\npossibility of insult to the [Mexican government] and of\ninterference with the efforts of the political branches to seek\nfavorable relations with [the Mexican government],”\ndirectly supporting application of the act of state doctrine.\nIAM, 649 F.2d at 1361; see also Sabbatino, 376 U.S. at 415\nn.17 (“An inquiry by United States courts into the validity of\nan act of an official of a foreign state under the law of that\nstate . . . if wrongly made[] would be likely to be highly\noffensive to the state in question.”).\n\n Third, as to whether “[t]he balance of relevant\nconsiderations may . . . be shifted if the government which\nperpetuated the challenged act of state is no longer in\nexistence,” Sabbatino, 376 U.S. at 428, Plaintiffs argue that\n\n ROYAL WULFF VENTURES V. PRIMERO MINING 23\n\na change in presidential administrations since the 2012 APA\nRuling issued counsels against applying the doctrine. But a\nchange in presidential administrations and policies does not\nmean that the government is no longer in existence, and\nPlaintiffs cite no authority suggesting that a mere change in\npresidential administrations satisfies the third Sabbatino\nfactor. Here, the challenged act of state, the government, and\nthe institution that took the challenged act, the SAT, remain\nintact. Cf. Sea Breeze Salt, 899 F.3d at 1074 (“[I]t is\nundisputed that the government of Mexico continues to\nexist.”). Furthermore, Plaintiffs’ complaint alleges that the\nnew administration has initiated proceedings to resolve the\nsame issues at the heart of their claims: whether, and to what\nextent, the 2012 APA Ruling complied with Mexico’s tax\nlaws. That inquiry counsels against the courts of a foreign\nnation interfering with Mexico’s sovereign interest in\ndetermining the SAT’s compliance with Mexican tax law.\nTherefore, the change in presidential administrations\nPlaintiffs identify does not weigh against applying the act of\nstate doctrine.\n\n Finally, Plaintiffs argue that the district court erred in\nfailing to consider whether the challenged act of state was in\nthe public interest. While we have recognized in other\ncontexts that “[o]ne factor we must consider [in deciding\nwhether to apply the act of state doctrine] is whether the\nforeign state was acting in the public interest,” Liu, 892 F.2d\nat 1432, we have not mandated that courts consider the\npublic interest in determining whether the act of state\ndoctrine applies. See, e.g., Credit Suisse, 130 F.3d at 1346–\n48 (applying act of state doctrine without considering\nwhether a foreign sovereign’s actions were taken in its\npublic’s interest); see also Sea Breeze Salt, 899 F.3d at\n1068–74 (same). Plaintiffs’ argument is that we should\ndecline to apply the act of state doctrine because Luis\n\n24 ROYAL WULFF VENTURES V. PRIMERO MINING\n\nNatera’s issuance of the 2012 APA Ruling was not in the\npublic interest, because “it violated Mexican law . . . and\ndeprived Mexico of legitimate tax revenue that could have\nbeen used for its populace.” But to deem those\nconsiderations as precluding application of the act of state\ndoctrine would turn the doctrine on its head. These are\nprecisely the types of domestic issues that Mexico should be\nable to resolve without interference by foreign courts. Thus,\nwhether the 2012 APA Ruling advanced Mexico’s public\ninterest does not counsel against applying the act of state\ndoctrine in this case.\n\n In sum, the mandatory elements for applying the act of\nstate doctrine are satisfied, and the policies underlying the\ndoctrine weigh in favor of applying it to bar Plaintiffs’\nclaims. 3\n\n IV.\n\n For the foregoing reasons, we affirm the district court’s\ndismissal under the act of state doctrine, and decline to\nreconsider whether a tax ruling by the Mexican government,\nthat remains valid in Mexico, complied with Mexico’s tax\nlaws.\n\n AFFIRMED.\n\n\n\n\n 3\n Because we conclude that the act of state doctrine applies to bar all\nof Plaintiffs’ claims, we need not consider whether the district court\ncorrectly dismissed this action on the alternative ground that Plaintiffs\nfailed to adequately plead any materially false or misleading statements.\n\n ROYAL WULFF VENTURES V. PRIMERO MINING 25\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Royal Wulff Ventures LLC v. Primero Mining Corp.\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-17\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nROYAL WULFF VENTURES LLC, No. 17-56367\\nLead Plaintiff; ROBERT E. COOK, as\\nTrustee for the Robert E. Cook and D.C. No.\\nPaula J. Brooks Living Trust Under 2:16-cv-01034-\\nAn Agreement Dated 12/30/1998. BRO-RAO\\nLead Plaintiff,\\n Plaintiffs-Appellants,\\n OPINION\\n v.\\n\\nPRIMERO MINING CORP.; JOSEPH F.\\nCONWAY; DAVID BLAIKLOCK;\\nWENDY KAUFMAN; WADE NESMITH;\\nDAVID DEMERS; GRANT EDEY; BRAD\\nMARCHANT; ROBERT QUARTERMAIN;\\nMICHAEL RILEY; ROHAN HAZELTON;\\nTIMO JAURISTO; EDUARDO LUNA,\\n Defendants-Appellees.\\n\\n Appeal from the United States District Court\\n for the Central District of California\\n Beverly Reid O’Connell, District Judge, Presiding\\n\\n Argued and Submitted March 4, 2019\\n Pasadena, California\\n\\n Filed September 17, 2019\\n\\n2 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\n Before: Kim McLane Wardlaw and Mark J. Bennett,\\n Circuit Judges, and William K. Sessions III, *\\n District Judge.\\n\\n Opinion by Judge Wardlaw;\\n Dissent by Judge Bennett\\n\\n\\n SUMMARY **\\n\\n\\n Securities Fraud / Act of State Doctrine\\n\\n The panel affirmed the district court’s dismissal of a\\nsecurities fraud action as barred by the act of state doctrine\\nbecause plaintiffs’ claims under the Securities Exchange Act\\nof 1934 would require a United States court to pass judgment\\non the validity of a 2012 ruling by the Mexican tax authority.\\n\\n Plaintiffs alleged that defendants failed to disclose legal\\ndeficiencies in the tax ruling and sold shares knowing those\\ndeficiencies existed. After a change in government in\\nMexico, a challenge to the ruling was filed, but it remained\\nvalid under Mexican law.\\n\\n The act of state doctrine bars suit where there is an\\nofficial act of a foreign state performed within its own\\nterritory and the relief sought or the defenses interposed in\\nthe action would require a court in the United States to\\n\\n *\\n The Honorable William K. Sessions III, United States District\\nJudge for the District of Vermont, sitting by designation.\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 3\\n\\ndeclare invalid the foreign sovereign’s official act. The\\npanel held that plaintiffs’ claims would require a United\\nStates court to determine whether the Mexican tax\\nauthority’s ruling was properly issued under Mexican law.\\nTo determine whether defendants misled investors with an\\nintent to deceive, a court would have to decide whether, and\\nto what extent, the ruling complied with Mexico’s Income\\nTax Law, as well as various other Mexican laws governing\\nthe ethical obligations of public servants in Mexico.\\nAgreeing with other circuits, the panel held that the district\\ncourt was not required to consider other factors, known as\\nthe Sabbatino factors. Further, those factors would not have\\nweighed against application of the act of state doctrine. In\\nsum, the mandatory elements for applying the act of state\\ndoctrine were satisfied, and the policies underlying the\\ndoctrine weighed in favor of applying it to bar plaintiffs’\\nclaims.\\n\\n Dissenting, Judge Bennett wrote that the majority\\nmisapplied the act of state doctrine, and he believed that\\ndefendants’ statements were materially false or misleading.\\nJudge Bennett wrote that, to find for plaintiffs, a court would\\nonly need to determine whether, at the time the defendants\\nmade the alleged misrepresentations, they knew that there\\nwas a real risk that the Mexican government would nullify\\nthe tax ruling—not whether the ruling was actually invalid.\\nJudge Bennett would reverse the district court’s rulings that\\nthe act of state doctrine barred plaintiffs’ action and that\\nplaintiffs failed to adequately plead any materially false or\\nmisleading statements.\\n\\n4 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\n COUNSEL\\n\\nRichard W. Gonnello (argued), Katherine M. Lenahan, and\\nMegan M. Sullivan, Faruqi & Farugi LLP, New York, New\\nYork, for Plaintiffs-Appellants.\\n\\nDaniel M. Perry (argued) and James D. Whooley, Milbank\\nTweed Hadley & McCloy LLP, Los Angeles, California, for\\nDefendants-Appellees.\\n\\n\\n OPINION\\n\\nWARDLAW, Circuit Judge:\\n\\n We have long recognized that the courts of one country\\nwill not sit in judgment of the acts of a foreign sovereign\\ncommitted within its own territory. The act of state doctrine\\nlimits judicial interference in foreign relations by precluding\\nadjudication of the sovereign acts of other nations in United\\nStates courts. Because Plaintiffs’ claims under the Securities\\nExchange Act of 1934 would require a United States court\\nto pass judgment on the validity of a 2012 ruling by the\\nUnited Mexican States’ (Mexico) tax authority, the Servicio\\nde Administraciόn Tributaria, they are barred by the act of\\nstate doctrine. We therefore affirm the district court’s\\ndismissal of Plaintiffs’ putative class action complaint.\\n\\n I.\\n\\n Plaintiffs Royal Wulff Ventures LLC and Robert E.\\nCook, as trustee of the Robert E. Cook and Paula J. Brooks\\nLiving Trust Under An Agreement Dated 12/30/1988\\n(collectively Plaintiffs), filed a putative class action in the\\nCentral District of California, alleging violations of the\\nSecurities Exchange Act of 1934 (Exchange Act) against\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 5\\n\\nPrimero Mining Corporation (Primero) and twelve other\\nnamed defendants.\\n\\n According to the operative complaint, Primero is a\\nCanadian mining company whose principal asset at the\\nbeginning of the class period (October 5, 2012 to February\\n3, 2016) was the San Dimas gold-silver mine in Tayoltita,\\nDurango, Mexico. The San Dimas mine “has a large silver\\nreserve [that] can be mined at a relatively low cost,” and was\\npreviously owned and operated by two companies that are\\nnot parties to the present action: Wheaton River Minerals\\nLtd. and Goldcorp Inc. After Primero purchased the San\\nDimas mine from Goldcorp Inc. in August 2010 for\\n$510 million, Primero’s Mexican subsidiary, Primero\\nEmpresa Minera, S.A. de C.V. (PEM) owned and operated\\nthe San Dimas mine. Primero also acquired a separate\\nsubsidiary from Goldcorp Inc., which it renamed Silver\\nTrading Barbados.\\n\\n In connection with the August 2010 purchase of the San\\nDimas mine, Primero also assumed the obligations of two\\nseparate amended contracts: the Internal Silver Purchase\\nAgreement 2004 (Internal SPA) and External Silver\\nPurchase Agreement 2004 (External SPA). As a result, PEM\\nwas contractually bound to sell to Silver Trading Barbados,\\nanother Primero subsidiary, “the first 3.5 million ounces per\\nyear of silver produced by the San Dimas mine, plus 50% of\\nthe excess silver above this amount” at the market rate per\\nounce of silver (Spot Price) for the first four years after\\nPrimero acquired the San Dimas mine. Silver Trading\\nBarbados, in turn, was bound by these contracts to “sell that\\nsilver to [unaffiliated Silver Wheaton (Caymans) Ltd.] at the\\nlesser of $4.04 per ounce (adjusted by 1% per year) and Spot\\nPrices.” Primero also agreed that after the first four years, it\\nwould sell “the first 6 million ounces per year of silver\\n\\n6 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\nproduced by the San Dimas mine, plus 50% of the excess\\nsilver above this amount,” to Silver Wheaton (Caymans)\\nLtd., “at the lesser of $4.20 per ounce (adjusted by 1% per\\nyear) and Spot Prices for the life of the mine.” During this\\nperiod, PEM “computed income taxes in Mexico based on\\nselling all silver produced at the San Dimas mine to [Silver\\nTrading Barbados] at Spot Prices as provided in the Internal\\nSPA.” Thus, while Primero was required to sell the silver to\\nSilver Wheaton (Caymans) Ltd. at around $4 per ounce, it\\nwas required under Mexican law to pay taxes at the\\nsignificantly higher Spot Prices at which PEM sold the silver\\nto its sister subsidiary. The complaint alleges that Mexico\\nthen allowed six transfer pricing methods for transactions\\nwith non-resident related parties, which PEM was required\\nto follow with respect to sales by PEM to Silver Trading\\nBarbados under Mexico’s Income Tax Law.\\n\\n During the existence of these contracts the Spot Price per\\nounce of silver began to rise. At the outset of the\\nagreements, the price was around $6.47 per ounce, but by\\nMarch 2011, the Spot Price of silver had increased to nearly\\n$35 per ounce. The Internal SPA and External SPA\\nagreements thus led to a significant tax burden for Primero:\\nin the first quarter of 2011, for instance, Primero “recorded\\na net loss of $7.895 million after paying $12.9 million in\\nincome taxes on pre-tax income of just $5.05 million.”\\n\\n Plaintiffs allege that Primero devised a tax evasion\\nscheme to reduce this significant tax liability. This alleged\\nscheme involved two steps. First, Primero restructured its\\ncompany and amended the Internal SPA “so that the transfer\\nprice (i.e., the sale price) from PEM to [its sister subsidiary,\\nSilver Trading Barbados] was no longer the significantly\\nhigher Spot Price of silver, but rather the approximately $4\\nper ounce [unaffiliated Silver Wheaton (Caymans) Ltd.]\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 7\\n\\nPurchase Price.” And second, on October 17, 2011, a few\\ndays after amending the Internal SPA, Primero submitted an\\n“advance pricing agreement” (APA) application to Mexico’s\\ntax authority, the Servicio de Administraciόn Tributaria\\n(SAT), seeking approval of its new transfer pricing\\nmethodology resulting from its amendment to the Internal\\nSPA.\\n\\n According to the operative complaint, an APA is a\\n“prospective agreement regarding the taxpayer’s transfer\\nprices” through which “taxpayers [in Mexico can] avoid\\nfuture disputes over transfer pricing.” “APA Rulings are\\nvalid for five years, spanning the fiscal year in which they\\nare acquired, the immediately preceding year, and the\\nfollowing three fiscal years.” If an APA Ruling is not\\nproperly grounded in law or fact, “it can be retroactively\\nannulled by Mexico’s Tax Court through a proceeding\\ninitiated by the SAT, known as a juicio de lesividad.”\\n\\n The operative complaint also alleges that “APAs are\\nhandled exclusively by the SAT’s Transfer Pricing Audit\\nAdministration,” and that “[u]nder Mexican law, the head of\\nthe Transfer Pricing Audit Administration, known as the\\nCentral Administrator for Transfer Pricing Audits, is one of\\na few people in the Transfer Pricing Administration who\\nmay decide [APAs] and in any event is in charge of the\\nremaining few [people] who can [decide APAs].”\\n\\n As part of Primero’s APA application, the company\\nhired an attorney named Christian Natera, whose firm,\\nNatera Consultores, S.C., specialized in transfer pricing. At\\nthe time, Christian Natera’s brother, Luis Natera, served as\\nthe Central Administrator for Transfer Pricing Audits. In\\nthis position, Christian Natera’s brother was “one of a few\\npeople in the Transfer Pricing Administration who [could]\\ndecide [APAs] and in any event [was] in charge of the\\n\\n8 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\nremaining few [people] who [could decide APAs].”\\nThrough its APA application, Primero allegedly sought\\napproval of a transfer pricing methodology known as the\\n“comparable uncontrolled price” or “CUP” method, which\\nwould allow it to pay taxes based on the approximately $4\\nper ounce unaffiliated Silver Wheaton (Caymans) Ltd.\\nPurchase Price for silver extracted from the San Dimas mine,\\nrather than the Spot Price. Plaintiffs allege that the CUP\\nmethod is one of the six Mexican-approved transfer pricing\\nmethods; however, they also contend that Primero’s APA, as\\nactually approved, failed to comply with the CUP method.\\n\\n On October 5, 2012, Primero issued a press release\\nannouncing that PEM “ha[d] received a positive ruling from\\nthe Mexican tax authorities . . . .” The release described the\\nruling: “The ruling confirms that [PEM] appropriately\\nrecords revenue and taxes from sales under the silver\\npurchase agreement at realized prices rather than spot prices\\neffective from August 6, 2010.” Thus, under the ruling, the\\nMexican tax authority allowed PEM to pay taxes based on\\nthe Silver Wheaton (Caymans) Ltd. Purchase Price, rather\\nthan the Spot Price. According to Plaintiffs, this\\nannouncement “shocked the markets,” and resulted in\\nPrimero’s stock increasing by 36%, closing at $7.37 per\\nshare that same day.\\n\\n Following this positive ruling by the SAT, Primero made\\na number of public statements that Plaintiffs allege were\\nmisleading in violation of U.S. securities laws. The first set\\nof statements Plaintiffs identify concerns the effect that the\\nSAT’s 2012 APA Ruling would have on Primero’s cash flow\\nand tax position. While Plaintiffs catalogue a significant\\nnumber of these statements by Primero in their complaint,\\nthe district court found the following statements\\nrepresentative:\\n\\nROYAL WULFF VENTURES V. PRIMERO MINING 9\\n\\n(1) Primero’s October 5, 2012 press release:\\n “Primero Mining Corp. . . . announced\\n today that [PEM] has received a positive\\n ruling from the Mexican tax authorities\\n (Servicio de Administracion Tributaria)\\n on its Advance Pricing Agreement\\n (“APA”) filing made in October 2011.\\n The ruling confirms that [PEM]\\n appropriately records revenues and taxes\\n from sales under the silver purchase\\n agreement at realized prices rather than\\n spot prices effective from August 6,\\n 2010. Under Mexican tax law, an APA\\n ruling is generally applicable for up to a\\n five year period. For Primero this applies\\n to the fiscal years 2010 to 2014.\\n Assuming the Company continues to sell\\n its silver from its San Dimas mine on the\\n same terms and there are no changes in\\n the application of Mexican tax laws\\n relative to the APA ruling, the Company\\n expects to pay taxes on realized prices for\\n the life of the San Dimas mine.”\\n\\n(2) Defendant Conway: “We had a\\n significant tax burden, which we have\\n just recently got cleared of, but more\\n importantly I think as well now that that\\n is done, what else are we doing?”\\n\\n(3) Primero’s February 13, 2014 Form 6-K:\\n “The Company has taken the position that\\n if the Mexican tax laws relative to the\\n APA ruling do not change and the\\n Company does not change the structure\\n\\n10 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\n of the silver purchase agreement, the\\n ability of the Company to continue to pay\\n taxes in Mexico based on realized prices\\n of silver will continue for the life of the\\n San Dimas mine. Should this judgment\\n change, there would be a material change\\n in both the income and deferred tax\\n position recognized by the Company.”\\n\\n Plaintiffs also allege that Primero made various false and\\nmisleading public statements representing that its quarterly\\nand annual financial statements were “prepared in\\naccordance with International Financial Reporting Standards\\nas issued by the International Accounting Standards Board,\\nand reflect management’s best estimates and judgment based\\non information currently available.” In addition to making\\nthese statements, Primero allegedly used its newly generated\\nwealth to acquire two companies, Cerro Resources NL and\\nBrigus Gold Corp., selling 41,340,664 of its own shares in\\nthe process.\\n\\n But, according to Plaintiffs, several legal deficiencies in\\nthe SAT’s 2012 APA Ruling were confirmed after a new\\ngovernment administration came to power in Mexico. The\\nnew government, led by President Enrique Peña Nieto and\\nmembers of the Institutional Revolutionary Party, began to\\ncrack down on suspected tax avoidance schemes. Plaintiffs\\nallege that by November 2013, Luis Natera had been found\\nadministratively liable for failing to recuse himself from\\nPrimero’s APA application, and was temporarily suspended\\nfrom working in the public sector. Plaintiffs also allege that\\nin August 2015, the SAT filed a juicio de lesividad against\\nPEM seeking to retroactively nullify the 2012 APA Ruling.\\nWhen Primero issued a press release in February 2016\\nannouncing that the SAT had served it with a juicio de\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 11\\n\\nlesividad challenging the 2012 APA Ruling, Primero’s\\nshares fell “$0.74 per share, or over 28%, to close at $1.89\\nper share on February 4, 2016.” However, although a juicio\\nde lesividad was filed, its contents, and the reasons for which\\nit was filed, are not public. Moreover, Plaintiffs do not\\ncontest that the 2012 APA Ruling remains valid under\\nMexican law.\\n\\n Although Plaintiffs concede that the contents of the\\njuicio de lesividad and the reasons for which it was filed are\\nnot public, Plaintiffs allege “[u]pon information and belief\\n. . . that the juicio de lesividad was filed for the following\\nreasons: (i) Luis Natera improperly failed to recuse himself\\nfrom Primero’s APA application given that his brother,\\nChristian Natera, was an authorized representative of\\n[Primero;] (ii) the APA Ruling approved a transfer pricing\\nmethodology other than the CUP methodologies that were\\nproposed by Primero[;] (iii) the APA Ruling did not conduct\\nthe requisite comparison of the factors set forth in Article\\n215 of [Mexico’s Income Tax Law] that are used to\\ndetermine whether a transaction complies with the [arms\\nlength principle;] and (iv) Primero’s proposed CUP\\nmethodologies were flawed anyway because the transaction\\nthat Primero attempted to use as its comparable independent\\ntransaction . . . was actually a related party transaction and\\nwas therefore an inappropriate comparison transaction . . . .”\\n\\n Plaintiffs allege that in failing to disclose these alleged\\nlegal deficiencies in the 2012 APA Ruling, and in selling\\nPrimero shares knowing these legal deficiencies existed,\\nPrimero violated Rule 10b-5 and sections 10(b), 20A of the\\nExchange Act. Plaintiffs also allege violations of Rule 10b-\\n5 and sections 10(b), 20(a) of the Exchange Act against\\nvarious “Officer Defendants,” as well as violations of\\n\\n12 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\nsection 20(a) of the Exchange Act against various “Director\\nDefendants” and Defendant Joseph Conway.\\n\\n Primero moved to dismiss the Plaintiffs’ complaint\\nbased on the act of state doctrine and failure to state a claim.\\nThe district court dismissed the action as barred by the act of\\nstate doctrine, and ruled in the alternative that Plaintiffs had\\nfailed to adequately plead any materially false or misleading\\nstatements. Plaintiffs timely appeal.\\n\\n II.\\n\\n “[W]e review the district court’s decision concerning the\\nact of state doctrine de novo.” Liu v. Republic of China,\\n892 F.2d 1419, 1424 (9th Cir. 1989). “When the doctrine is\\nraised on a motion to dismiss, we take the allegations in the\\ncomplaint as true and view them in the light most favorable\\nto the plaintiffs.” Sea Breeze Salt, Inc. v. Mitsubishi Corp.,\\n899 F.3d 1064, 1068 (9th Cir. 2018) (citing Clayco\\nPetroleum Corp. v. Occidental Petroleum Corp., 712 F.2d\\n404, 406 (9th Cir. 1983) (per curiam)).\\n\\n III.\\n\\n While the act of state doctrine was once viewed as “an\\nexpression of international law, resting upon ‘the highest\\nconsiderations of international comity and expediency,’”\\nW.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., Int’l,\\n493 U.S. 400, 404 (1990) (quoting Oetjen v. Cent. Leather\\nCo., 246 U.S. 297, 303–04 (1918)), we have come to view\\nthe doctrine “as a consequence of domestic separation of\\npowers, reflecting ‘the strong sense of the Judicial Branch\\nthat its engagement in the task of passing on the validity of\\nforeign acts of state may hinder’ the conduct of foreign\\naffairs,” id. (quoting Banco Nacional de Cuba v. Sabbatino,\\n376 U.S. 398, 423 (1964)).\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 13\\n\\n “As a doctrinal matter, the ‘classic statement’ of the act\\nof state doctrine is that ‘[e]very sovereign State is bound to\\nrespect the independence of every other sovereign State, and\\nthe courts of one country will not sit in judgment on the acts\\nof the government of another done within its own territory.’”\\nSea Breeze Salt, 899 F.3d at 1069 (quoting Credit Suisse v.\\nU.S. Dist. Court for Cent. Dist. of Cal., 130 F.3d 1342, 1346\\n(9th Cir. 1997)). “In its modern formulation, the doctrine\\nbars suit where ‘(1) there is an official act of a foreign\\nsovereign performed within its own territory; and (2) the\\nrelief sought or the defense interposed [in the action would\\nrequire] a court in the United States to declare invalid the\\n[foreign sovereign’s] official act.’” Id. (alterations in\\noriginal) (quoting Credit Suisse, 130 F.3d at 1346). “[E]ven\\nwhen [these] two mandatory elements are satisfied, courts\\nmay appropriately look to additional factors [i.e., the policies\\nunderlying the act of state doctrine] to determine whether\\napplication of the act of state doctrine is justified.” Id.\\nat 1072–73 (citing W.S. Kirkpatrick, 493 U.S. at 409).\\n\\n A. Invalidation of an Official Act of a Foreign\\n Sovereign\\n\\n The district court correctly held that all of Plaintiffs’\\nExchange Act claims are barred by the act of state doctrine\\nbecause they would require a United States court to\\ndetermine whether the Mexican tax authority’s 2012 APA\\nRuling was properly issued under Mexican law. Plaintiffs\\ndo not challenge the conclusion that the 2012 APA Ruling\\nissued by Mexico’s tax authority constitutes a “public and\\ngovernmental act[] of [a] sovereign state,” taken within its\\nown territory, Alfred Dunhill of London, Inc. v. Republic of\\nCuba, 425 U.S. 682, 695 (1976) (plurality opinion), but\\ninstead argue that the act of state doctrine applies only where\\nUnited States courts would be required to declare the foreign\\n\\n14 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\ngovernment’s action “null and void,” not unlawful in any\\nother way. But our precedent dictates otherwise. We have\\nlong recognized that the act of state doctrine applies where\\nresolution of a plaintiff’s claims would require a court to\\nevaluate a foreign sovereign’s compliance with its own laws.\\nSee West v. Multibanco Comermex, S.A., 807 F.2d 820, 828\\n(9th Cir. 1987) (“The evaluation by one sovereign of foreign\\nofficers’ compliance with their own laws would, at least in\\nthe absence of the foreign sovereign’s consent, intrude upon\\nthat state’s coequal status.”).\\n\\n In Kirkpatrick, the Supreme Court rejected application\\nof the act of state doctrine because “the factual predicate for\\napplication . . . d[id] not exist.” 493 U.S. at 405. It went on\\nto state: “Nothing in the present suit requires the Court to\\ndeclare invalid, and thus ineffective . . . the official act of a\\nforeign sovereign.” Id. (citation omitted). The Court further\\nreasoned that “[a]ct of state issues only arise when a court\\nmust decide—that is, when the outcome of the case turns\\nupon—the effect of official action by a foreign sovereign.”\\nId. at 406; see also Sabbatino, 376 U.S. at 415 n.17 (“An\\ninquiry by United States courts into the validity of an act of\\nan official of a foreign state under the law of that state would\\nnot only be exceedingly difficult but, if wrongly made,\\nwould be likely to be highly offensive to the state in\\nquestion.”).\\n\\n Plaintiffs rely on Kirkpatrick to support their argument\\nthat the act of state doctrine is inapplicable here because their\\nclaims do not require United States courts to decide whether\\nthe Mexican tax authority’s 2012 APA Ruling was valid. In\\nKirkpatrick, plaintiffs brought federal and state civil RICO\\nclaims, as well as claims under the Robinson-Patman Act of\\n1936, 15 U.S.C. § 13, against a competitor which allegedly\\npaid bribes to Nigerian officials in order to obtain a contract\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 15\\n\\nfrom the Nigerian government. 493 U.S. at 401–04. The\\nKirkpatrick defendants argued that the facts required to\\ndemonstrate they paid bribes to Nigerian officials to obtain\\ncontracts would also demonstrate that the contracts violated\\nNigerian law. Id. at 406. The Court disagreed, holding that\\n“[r]egardless of what the court’s factual findings may\\nsuggest as to the legality of the Nigerian contract, its legality\\nis simply not a question to be decided in the present suit, and\\nthere is thus no occasion to apply the rule of decision that the\\nact of state doctrine requires.” Id. The Court cited Sharon\\nv. Time, Inc., 599 F. Supp. 538, 546 (S.D.N.Y. 1984), to\\nemphasize that “[t]he issue in this litigation is not whether\\n[the alleged] acts are valid, but whether they occurred.” See\\nW.S. Kirkpatrick, 493 U.S. at 406.\\n\\n Here, unlike in Kirkpatrick, to conclude that Primero\\nmisled investors, a court must decide whether, and to what\\nextent, the 2012 APA Ruling complies with Mexico’s\\nIncome Tax Law, as well as various other Mexican laws\\ngoverning the ethical obligations of public servants in\\nMexico. Here, it is not simply a question of whether a given\\nact—in Kirkpatrick a bribe—occurred; the questions\\nPlaintiffs raise are as to the legality of the 2012 APA Ruling\\nitself, and what defendants knew about its validity or not.\\n\\n To prevail on their securities fraud claims under section\\n10(b) and Rule 10b-5, Plaintiffs must show (1) a material\\nmisrepresentation or omission; (2) scienter; (3) a connection\\nbetween the misrepresentation or omission and the purchase\\nor sale of a security; (4) reliance; (5) economic loss; and\\n(6) loss causation. See Or. Pub. Emps. Ret. Fund v. Apollo\\nGrp. Inc., 774 F.3d 598, 603 (9th Cir. 2014) (citing\\nStoneridge Inv. Partners, LLC v. Sci.-Atlanta, Inc., 552 U.S.\\n148, 157 (2008)). “[S]cienter refers to ‘a mental state\\nembracing intent to deceive, manipulate, or defraud,’”\\n\\n16 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\nMerck & Co., Inc. v. Reynolds, 559 U.S. 633, 648 (2010)\\n(citing Ernst & Ernst v. Hochfelder, 425 U.S. 185, 194 n.12\\n(1976)), and may also refer to deliberate recklessness, “a\\nform of intentional or knowing misconduct.” Zucco\\nPartners, LLC v. Digimarc Corp., 552 F.3d 981, 991 (9th\\nCir. 2009) (citation omitted). Plaintiffs accordingly must\\nshow that Primero “made a material misstatement with an\\nintent to deceive—not merely innocently or negligently.”\\nMerck & Co., 559 U.S. at 648–49 (citing Tellabs, Inc. v.\\nMakor Issues & Rights, Ltd., 551 U.S. 308, 319 (2007)).\\nPlaintiffs’ claims under sections 20A, 20(a) of the Exchange\\nAct, in turn, depend on predicate violations of either section\\n10(b) or Rule 10b-5. See In re VeriFone Holdings, Inc. Sec.\\nLitig., 704 F.3d 694, 710–11 (9th Cir. 2012) (“To prevail on\\nits claims for violations of § 20A, [Plaintiff] must first\\nsufficiently allege a violation of § 10(b) or Rule 10b-5.”\\n(citing Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1035\\nn.15 (9th Cir. 2002))); see also Zucco Partners, LLC v.\\nDigimarc Corp., 552 F.3d 981, 990 (9th Cir. 2009) (“Section\\n20(a) claims may be dismissed summarily . . . if a plaintiff\\nfails to adequately plead a primary violation of section\\n10(b).”). In total, Plaintiffs identify two categories of\\nallegedly materially misleading statements: (1) statements\\nabout the 2012 APA Ruling and its impact on Primero’s\\nfinances; and (2) statements that Primero’s quarterly and\\nannual statements were prepared in accordance with\\nInternational Financial Reporting Standards. Plaintiffs\\nallege that in making both categories of statements,\\ndefendants knowingly failed to disclose legal deficiencies\\nunder Mexican tax law in the 2012 APA Ruling that could\\nrender it vulnerable to non-renewal or nullification. The\\nlogic is compelling: United States courts would be required\\nto decide whether there were in fact legal deficiencies under\\nMexican law that would nullify the APA Ruling—in other\\nwords invalidate it—that could be known and were known\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 17\\n\\nas such to defendants when they made their public\\nstatements. By contrast, in Kirkpatrick, United States courts\\nwere not called upon to decide whether the Nigerian contract\\nwas legally deficient under Nigerian law due to the bribes;\\nall they were asked to decide is whether bribes were made. 1\\n\\n As Plaintiffs also acknowledge, the 2012 APA Ruling\\nthat they contend is so legally flawed as to render Primero’s\\nstatements about it misleading, remains lawful and valid\\nunder Mexican law. And although Plaintiffs allege that the\\nMexican government has filed a juicio de lesividad to nullify\\nthe 2012 APA Ruling, according to the complaint those\\nproceedings are ongoing, and there are no allegations that\\nthe Mexican government has ruled on its juicio de lesividad.\\n\\n Under these circumstances, allowing Plaintiffs’\\nExchange Act claims to proceed would require “[t]he\\nevaluation by one sovereign of foreign officers’ compliance\\nwith their own laws . . . in the absence of the foreign\\nsovereign’s consent,” because “[t]he acts or omissions of the\\nsovereign,” and the compliance of Mexican officials with\\nMexican law “is the determinative issue on [Plaintiffs’]\\nclaim[s].” West, 807 F.2d at 828. For instance, Plaintiffs\\nallege that the 2012 APA Ruling was vulnerable to legal\\n\\n 1\\n The dissent seems to misapprehend this aspect of a section 10(b)\\nand Rule 10b-5 claim. To prevail, Plaintiffs must demonstrate an\\nintentional or knowing material misleading fact or omission. See Merck\\n& Co., 559 U.S. at 648–49. The only way Primero’s statements were\\nknowingly or intentionally misleading is if the alleged unethical behavior\\nof a Mexican official rendered Mexico’s 2012 APA Ruling invalid.\\nEven taking Plaintiffs’ allegations as true, and assuming that Luis Natera\\nacted unethically, Plaintiffs still must prove both that this conduct\\ninvalidated the 2012 APA Ruling under Mexican law as a result and that\\nPrimero knew that the APA Ruling was so invalidated at the time of its\\nstatements.\\n\\n18 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\nchallenge, and could therefore be nullified, under two\\nseparate articles of Mexico’s Income Tax Law, as well as at\\nleast two other articles of Mexico’s conflict of interest laws.\\nBut for a court to credit Plaintiffs’ theories, and conclude\\nthat Primero knowingly failed to disclose these alleged\\nmaterial legal deficiencies, that court will necessarily be\\nrequired to determine whether those alleged deficiencies\\nwere in fact present in the APA proceedings, should have led\\nthe Mexican tax authority to disapprove the APA in the first\\nplace, or resulted in an APA Ruling that was subject to\\nnullification. This sort of review of a foreign government’s\\ndecision is precisely what the act of state doctrine precludes.\\nBecause Plaintiffs’ Exchange Act claims would require a\\ncourt to evaluate Mexico’s tax authority’s compliance with\\nMexican law, their claims would require “a court in the\\nUnited States to declare invalid the official act of a foreign\\nsovereign performed within its own territory.” W.S.\\nKirkpatrick, 493 U.S. at 405. The second element for\\napplication of the act of state doctrine is therefore met. 2\\n\\n\\n 2\\n While the dissent focuses extensively on the history of the Supreme\\nCourt’s act of state doctrine jurisprudence, it fails to engage in the\\ndoctrinal analysis required in this case. As we have previously\\nrecognized, the act of state doctrine bars suit where “(1) there is an\\nofficial act of a foreign sovereign performed within its own territory; and\\n(2) the relief sought or the defense interposed [in the action] would\\nrequire a court in the United States to declare invalid the [foreign\\nsovereign’s] official act.” Sea Breeze Salt, 899 F.3d at 1069 (alterations\\nin original) (citation omitted). Here, applying our precedent, we hold\\nthat the second element of the act of state doctrine is satisfied where the\\nvalidity of a public and governmental act—Mexico’s 2012 APA\\nRuling—under Mexico’s own, myriad applicable laws is outcome-\\ndeterminative of Plaintiffs’ claims. See West, 807 F.2d at 828. This\\nholding is squarely consistent with W.S. Kirkpatrick, which affirmed,\\nrather than reversed, the principle acknowledged in West that the act of\\nstate doctrine applies where a court must decide the legality of a foreign\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 19\\n\\n B. The Sabbatino Factors\\n\\n In Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398\\n(1964), the Supreme Court acknowledged three factors for\\ncourts to consider to ensure that application of the act of state\\ndoctrine “reflect[s] the proper distribution of functions\\nbetween the judicial and political branches of the\\nGovernment on matters bearing upon foreign affairs.”\\n376 U.S. at 427–28. First, “the greater the degree of\\ncodification or consensus concerning a particular area of\\ninternational law, the more appropriate it is for the judiciary\\nto render decisions regarding it . . . .” Id. at 428. Second,\\n“the less important the implications of an issue are for our\\nforeign relations, the weaker the justification for exclusivity\\nin the political branches.” Id. And finally, “[t]he balance of\\nrelevant considerations may also be shifted if the\\ngovernment which perpetrated the challenged act of state is\\nno longer in existence . . . .” Id. As the Court later stated,\\n\\nsovereign’s actions under that sovereign’s laws. See W.S. Kirkpatrick,\\n493 U.S. at 406.\\n\\n The dissent further asserts that Plaintiffs’ Exchange Act claims do\\nnot require us to determine the legality of the 2012 APA Ruling. See,\\ne.g., Dissent at 34 (“Plaintiffs need not show . . . that the 2012 APA\\nRuling was illegal or invalid.”). But in order for us to determine whether\\nor not Defendants’ statements or omissions about the legal validity of the\\n2012 APA Ruling were materially false or misleading, we must\\nnecessarily determine in the first instance (1) whether the 2012 APA\\nRuling did in fact suffer from legal defects under Mexican law, and\\n(2) whether Defendants’ statements or omissions accurately reflected\\nthose purported legal defects under Mexican law. Despite its exhaustive\\nreview, the dissent fails to explain how Plaintiffs’ claims can be resolved\\nwithout first determining whether the 2012 APA Ruling suffered from\\nlegal deficiencies under Mexican law, and similarly fails to show how\\nthe second element of the act of state doctrine is not met where a foreign\\nsovereign’s compliance with its own laws is the determinative issue on\\nPlaintiffs’ claims, as here.\\n\\n20 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\n“in Sabbatino . . . we observed that sometimes, even though\\nthe validity of the act of a foreign sovereign within its own\\nterritory is called into question, the policies underlying the\\nact of state doctrine may not justify its application.” W.S.\\nKirkpatrick, 493 U.S. at 409.\\n\\n Plaintiffs contend that the district court erred by failing\\nto conduct an analysis of the Sabbatino factors. But neither\\nour circuit nor the Supreme Court has required explicit\\nconsideration of the Sabbatino factors in properly applying\\nthe act of state doctrine. See Sea Breeze Salt, 899 F.3d\\nat 1072–73 (“[E]ven when the two mandatory elements are\\nsatisfied, courts may appropriately look to additional factors\\nto determine whether application of the act of state doctrine\\nis justified.” (emphasis added) (citing W.S. Kirkpatrick,\\n493 U.S. at 409)). This accords with the approach taken by\\nour sister circuits. See, e.g., Konowaloff v. Metro. Museum\\nof Art, 702 F.3d 140, 146 (2d Cir. 2012) (“[A] court may\\nproperly grant a motion to dismiss on the basis of [the act of\\nstate doctrine] when its applicability is shown on the face of\\nthe complaint.”), cert. denied, 570 U.S. 906 (2013); see also\\nWorld Wide Minerals, Ltd. v. Republic of Kazakhstan,\\n296 F.3d 1154, 1164–67 (D.C. Cir. 2002) (affirming the\\ndistrict court’s dismissal under the act of state doctrine\\nwhere the district court did not address the Sabbatino factors,\\nbut the case was “plainly [one] in which the policies\\nunderlying the doctrine ‘justify its application’” (quoting\\nW.S. Kirkpatrick, 493 U.S. at 409)), cert. denied, 537 U.S.\\n1187 (2003). Because this is a case in which the policies\\nunderlying the act of state doctrine justify its application, the\\ndistrict court did not err in declining to specifically address\\neach Sabbatino factor. And even if the district court had\\ngone on to address those factors, they would not have\\nweighed against applying the act of state doctrine.\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 21\\n\\n With respect to “the degree of codification or consensus\\nconcerning a particular area of international law,”\\nSabbatino, 376 U.S. at 428, Plaintiffs argue that there is a\\nhigh degree of international consensus as to the appropriate\\nuse of the arm’s length principle for transfer pricing\\nmethodologies, rendering review of the 2012 APA Ruling\\nappropriate. While Plaintiffs cite to guidelines on transfer\\npricing published by the Organisation for Economic Co-\\noperation and Development (OECD) in support of their\\nclaim of international consensus on the arm’s length\\nprinciple, these guidelines do not affect the issue underlying\\nPlaintiffs’ claims: that resolving their claims would require\\na court to determine whether the Mexican government\\nviolated its own tax laws in issuing the 2012 APA Ruling.\\nPlaintiffs’ assertion that the 2012 APA Ruling failed to\\ncomply with the arm’s length principle is simply a\\nrephrasing of their assertion that the 2012 APA Ruling failed\\nto comply with Mexico’s Income Tax Law. The SAT, in its\\nruling, approved of a transfer pricing methodology for PEM,\\nconcluding that this methodology complied with Article 215\\nof Mexico’s Income Tax Law. Article 215, according to\\nPlaintiffs, “sets forth the [arm’s length principle], providing\\nthat corporate taxpayers dealing with foreign related parties\\nare required to determine their gross income and allowable\\ndeductions by using the prices and consideration that would\\nhave been used with or between independent parties in\\ncomparable transactions.” As such, guidelines published by\\nthe OECD as to the appropriate use of the arm’s length\\nprinciple have no effect on the requirement inherent in\\nPlaintiffs’ claims that a court in the United States reevaluate\\nthe Mexican government’s compliance with its own tax\\nlaws. Because of this, the degree of international consensus\\nas to the arm’s length principle does not affect our\\nconclusion that the act of state doctrine applies.\\n\\n22 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\n Second, Plaintiffs’ claims carry significant implications\\nfor U.S. foreign relations because the subject of the 2012\\nAPA Ruling is how Mexico taxes transfers of silver, a\\nnatural resource extracted in Mexico. We have repeatedly\\nrecognized that where an action challenges a foreign\\nsovereign’s decisions about how to exploit its own natural\\nresources, that action “would be inherently offensive to the\\nprinciple of co-equality among international sovereigns[.]”\\nSea Breeze Salt, 899 F.3d at 1073; see also Int’l Ass’n of\\nMachinists and Aerospace Workers, (IAM) v. OPEC,\\n649 F.2d 1354, 1361 (9th Cir. 1981) (“[T]he granting of any\\nrelief would in effect amount to an order from a domestic\\ncourt instructing a foreign sovereign to alter its chosen\\nmeans of allocating and profiting from its own valuable\\nnatural resources.”). Here, were a United States court to\\nreview the 2012 APA Ruling, and attempt to determine\\nwhether the 2012 APA Ruling complied with Mexico’s tax\\nlaws, it would be instructing a foreign sovereign both on how\\nit should tax and regulate silver extracted in Mexico, and on\\nhow to do so in compliance with the foreign sovereign’s own\\nlaws. The “very nature” of that action would raise “[t]he\\npossibility of insult to the [Mexican government] and of\\ninterference with the efforts of the political branches to seek\\nfavorable relations with [the Mexican government],”\\ndirectly supporting application of the act of state doctrine.\\nIAM, 649 F.2d at 1361; see also Sabbatino, 376 U.S. at 415\\nn.17 (“An inquiry by United States courts into the validity of\\nan act of an official of a foreign state under the law of that\\nstate . . . if wrongly made[] would be likely to be highly\\noffensive to the state in question.”).\\n\\n Third, as to whether “[t]he balance of relevant\\nconsiderations may . . . be shifted if the government which\\nperpetuated the challenged act of state is no longer in\\nexistence,” Sabbatino, 376 U.S. at 428, Plaintiffs argue that\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 23\\n\\na change in presidential administrations since the 2012 APA\\nRuling issued counsels against applying the doctrine. But a\\nchange in presidential administrations and policies does not\\nmean that the government is no longer in existence, and\\nPlaintiffs cite no authority suggesting that a mere change in\\npresidential administrations satisfies the third Sabbatino\\nfactor. Here, the challenged act of state, the government, and\\nthe institution that took the challenged act, the SAT, remain\\nintact. Cf. Sea Breeze Salt, 899 F.3d at 1074 (“[I]t is\\nundisputed that the government of Mexico continues to\\nexist.”). Furthermore, Plaintiffs’ complaint alleges that the\\nnew administration has initiated proceedings to resolve the\\nsame issues at the heart of their claims: whether, and to what\\nextent, the 2012 APA Ruling complied with Mexico’s tax\\nlaws. That inquiry counsels against the courts of a foreign\\nnation interfering with Mexico’s sovereign interest in\\ndetermining the SAT’s compliance with Mexican tax law.\\nTherefore, the change in presidential administrations\\nPlaintiffs identify does not weigh against applying the act of\\nstate doctrine.\\n\\n Finally, Plaintiffs argue that the district court erred in\\nfailing to consider whether the challenged act of state was in\\nthe public interest. While we have recognized in other\\ncontexts that “[o]ne factor we must consider [in deciding\\nwhether to apply the act of state doctrine] is whether the\\nforeign state was acting in the public interest,” Liu, 892 F.2d\\nat 1432, we have not mandated that courts consider the\\npublic interest in determining whether the act of state\\ndoctrine applies. See, e.g., Credit Suisse, 130 F.3d at 1346–\\n48 (applying act of state doctrine without considering\\nwhether a foreign sovereign’s actions were taken in its\\npublic’s interest); see also Sea Breeze Salt, 899 F.3d at\\n1068–74 (same). Plaintiffs’ argument is that we should\\ndecline to apply the act of state doctrine because Luis\\n\\n24 ROYAL WULFF VENTURES V. PRIMERO MINING\\n\\nNatera’s issuance of the 2012 APA Ruling was not in the\\npublic interest, because “it violated Mexican law . . . and\\ndeprived Mexico of legitimate tax revenue that could have\\nbeen used for its populace.” But to deem those\\nconsiderations as precluding application of the act of state\\ndoctrine would turn the doctrine on its head. These are\\nprecisely the types of domestic issues that Mexico should be\\nable to resolve without interference by foreign courts. Thus,\\nwhether the 2012 APA Ruling advanced Mexico’s public\\ninterest does not counsel against applying the act of state\\ndoctrine in this case.\\n\\n In sum, the mandatory elements for applying the act of\\nstate doctrine are satisfied, and the policies underlying the\\ndoctrine weigh in favor of applying it to bar Plaintiffs’\\nclaims. 3\\n\\n IV.\\n\\n For the foregoing reasons, we affirm the district court’s\\ndismissal under the act of state doctrine, and decline to\\nreconsider whether a tax ruling by the Mexican government,\\nthat remains valid in Mexico, complied with Mexico’s tax\\nlaws.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 3\\n Because we conclude that the act of state doctrine applies to bar all\\nof Plaintiffs’ claims, we need not consider whether the district court\\ncorrectly dismissed this action on the alternative ground that Plaintiffs\\nfailed to adequately plead any materially false or misleading statements.\\n\\n ROYAL WULFF VENTURES V. PRIMERO MINING 25\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4465,"cells":{"id":{"kind":"number","value":4661506,"string":"4,661,506"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"First Amendment Coalition v. Charles Ryan"},"decision_date":{"kind":"string","value":"2019-09-17"},"docket_number":{"kind":"string","value":"17-16330"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Marsha S. Berzon, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"WATFORD, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nFIRST AMENDMENT COALITION OF No. 17-16330\\nARIZONA, INC.; CHARLES MICHAEL\\nHEDLUND; GRAHAM S. HENRY; D.C. No.\\nDAVID GULBRANDSON; ROBERT 2:14-cv-01447-\\nALLEN POYSON; TODD SMITH; NVW\\nELDON M. SCHURZ; ROGER SCOTT,\\n Plaintiffs-Appellants,\\n OPINION\\n v.\\n\\nCHARLES L. RYAN, Director of the\\nArizona Department of Corrections;\\nUNKNOWN PARTIES, named as: John\\nDoes - unknown ADC Personnel, in\\ntheir official capacities as\\nEmployees, Contractors, and/or\\nAgents of the Arizona Department of\\nCorrections; GREG FIZER, Warden,\\nASPC-Florence,\\n Defendants-Appellees.\\n\\n Appeal from the United States District Court\\n for the District of Arizona\\n Neil V. Wake, District Judge, Presiding\\n\\n Argued and Submitted September 12, 2018\\n San Francisco, California\\n\\n Filed September 17, 2019\\n\\n2 FIRST AMENDMENT COALITION V. RYAN\\n\\n Before: Marsha S. Berzon, Johnnie B. Rawlinson,\\n and Paul J. Watford, Circuit Judges.\\n\\n Opinion by Judge Watford;\\n Partial Concurrence and Partial Dissent by Judge Berzon\\n\\n\\n SUMMARY *\\n\\n\\n First Amendment / Death Penalty / 42 U.S.C. § 1983\\n\\n The panel affirmed in part and reversed in part the\\ndistrict court’s dismissal of plaintiffs’ second amended\\ncomplaint in an action brought by Arizona death-row\\ninmates and the First Amendment Coalition of Arizona,\\nchallenging Arizona’s revised execution procedures under\\nthe First Amendment.\\n\\n Plaintiffs challenged three of Arizona’s practices. First,\\nthe plaintiffs claimed that Arizona unconstitutionally\\nrestricted the ability of execution witnesses to hear the\\nsounds of the entire execution process. Second, the plaintiffs\\nclaimed that Arizona Department of Corrections (“ADC”)\\nofficials violated their First Amendment rights by failing to\\ndisclose certain information regarding the source and quality\\nof the lethal-injection drugs to be used in the inmates’\\nexecution. Third, the plaintiffs claimed that ADC officials\\nwere violating the First Amendment by failing to disclose\\nthe qualifications of each execution team member who will\\ninsert intravenous lines into the inmates.\\n\\n\\n *\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\n FIRST AMENDMENT COALITION V. RYAN 3\\n\\n Concerning plaintiffs’ claim that ADC officials violated\\ntheir First Amendment right of access to governmental\\nproceedings, the panel held that the right encompassed a\\nright to hear the sounds of executions in their entirety. The\\npanel further held that on the facts alleged, Arizona’s\\nrestrictions on press and public access to the sounds of\\nexecutions impermissibly burdened that right. The panel\\nreversed the district court’s decision as to this restriction.\\nThe panel also held that because the First Amendment right\\nof access to governmental proceedings did not entitle the\\nplaintiffs to information regarding execution drugs and\\npersonnel as a matter of law, the district court did not abuse\\nits discretion by dismissing with prejudice those aspects of\\nthe plaintiffs’ claim relating to such information.\\n\\n Concerning plaintiffs’ claim that Arizona’s restrictions\\nviolated the inmates’ First Amendment right of access to the\\ncourts, the panel agreed with the district court that the claim\\nfailed as a matter of law. The panel held that the district\\ncourt did not abuse its discretion by dismissing this claim\\nwithout leave to amend.\\n\\n Judge Berzon concurred in Parts I and II of the majority\\nopinion, but dissented as to Part III (First Amendment right\\nof access to the courts). Judge Berzon wrote separately to\\ncall attention to the inmates’ plausible allegations that\\nArizona, through its deliberate concealment of information\\nabout its execution process, has violated their First\\nAmendment right of access to the courts. Judge Berzon\\nwould also hold that Arizona’s approach to devising,\\nannouncing, and recording its execution procedures denied\\ncondemned inmates their right under the Fourteenth\\nAmendment to procedural due process of law.\\n\\n4 FIRST AMENDMENT COALITION V. RYAN\\n\\n COUNSEL\\n\\nCollin P. Wedel (argued), Joshua E. Anderson, Alycia A.\\nDegen, and Katherine A. Roberts, Sidley Austin LLP, Los\\nAngeles, California; Jon M. Sands, Federal Public Defender;\\nDale A. Baich and Jessica L. Felker, Assistant Federal Public\\nDefenders; Office of the Federal Public Defender, Phoenix,\\nArizona; for Plaintiffs-Appellants.\\n\\nDominic E. Draye (argued), Solicitor General; Lacey Stover\\nGard, Chief Counsel; Mark Brnovich, Attorney General;\\nOffice of the Attorney General, Phoenix, Arizona; for\\nDefendants-Appellees.\\n\\n\\n OPINION\\n\\nWATFORD, Circuit Judge:\\n\\n The plaintiffs in this case are seven Arizona death-row\\ninmates and the First Amendment Coalition of Arizona, a\\nnon-profit organization that seeks to advance free speech,\\naccountable government, and civic participation. They\\nbrought this action against officials of the Arizona\\nDepartment of Corrections (ADC) to challenge aspects of\\nthe Arizona execution process. We are asked to decide\\nwhether the plaintiffs have pleaded facts that plausibly state\\nclaims that the ADC officials have violated the plaintiffs’\\nFirst Amendment rights by: (1) restricting the ability of\\nexecution witnesses to hear the sounds of the entire\\nexecution process; (2) failing to disclose the source and\\nquality of the lethal-injection drugs that will be used in the\\ninmates’ executions; and (3) failing to disclose specific\\nqualifications of the execution team members who will insert\\nintravenous lines into the inmates.\\n\\n FIRST AMENDMENT COALITION V. RYAN 5\\n\\n I\\n\\n Since the Supreme Court upheld the constitutionality of\\na three-drug protocol in Baze v. Rees, 553 U.S. 35 (2008),\\nthe State of Arizona has executed 14 prisoners by lethal\\ninjection. During that time, the State has faced a series of\\nlegal challenges to its execution process. A number of those\\nchallenges have involved whether its executions expose\\nprisoners to needless pain in violation of the Eighth\\nAmendment. Although we have rejected the challenge each\\ntime, we have expressed serious concerns about the suffering\\ncaused by Arizona’s lethal-injection process. For instance,\\nwe noted that the execution of Robert Towery was\\n“perilously close” to falling outside of the constitutional safe\\nharbor created by Baze, given the length of time it took to\\nplace Towery’s intravenous lines. Lopez v. Brewer,\\n680 F.3d 1068, 1075 (9th Cir. 2012).\\n\\n Members of our court have noted serious due process\\nconcerns with Arizona’s execution procedures as well.\\nThese concerns have largely involved the shroud of secrecy\\nsurrounding Arizona’s execution proceedings and the\\nState’s pattern of deviating from its lethal-injection\\nprotocols at the last minute. See Lopez v. Brewer, 680 F.3d\\n1084, 1094–95 (9th Cir. 2012) (Reinhardt, J., dissenting\\nfrom denial of rehearing en banc). For example, Arizona\\ninformed the court that it intended to use a one-drug protocol\\ninstead of a three-drug protocol less than 48 hours before\\nTowery’s execution. See Towery v. Brewer, 672 F.3d 650,\\n652–53 (9th Cir. 2012). Then, when carrying out Towery’s\\nexecution, the State restricted public and attorney\\nobservation, prohibited Towery from describing the pain he\\nexperienced, and limited the notes recorded in the official\\nexecution log. See Lopez, 680 F.3d at 1082–83 (Berzon, J.,\\nconcurring in part and dissenting in part). These practices\\n\\n6 FIRST AMENDMENT COALITION V. RYAN\\n\\nhave constrained the ability of death-row inmates to\\nchallenge the constitutionality of Arizona’s execution\\nprocess, raising procedural due process concerns. See id. at\\n1083–84. This lack of information has also hampered\\njudicial review and public evaluation of the process.\\n\\n In 2014, six death-row inmates filed this 42 U.S.C.\\n§ 1983 action against various ADC officials in response to\\nthe problems described above. The inmates asserted, among\\nother things, that they have a First Amendment right to\\ndetailed information regarding the drugs to be used in their\\nexecutions and the qualifications of execution team\\nmembers. See Wood v. Ryan, 759 F.3d 1076, 1079 (9th Cir.),\\nvacated, 573 U.S. 976 (2014). Joseph Wood, one of the\\noriginal plaintiffs in this action, filed a motion for a\\npreliminary injunction seeking a stay of his impending\\nexecution until he obtained the requested information. Our\\ncourt concluded that Wood had raised serious questions as\\nto whether he was entitled to the requested information\\nunder the First Amendment and granted a conditional stay.\\nId. at 1080–86, 1088. The Supreme Court summarily\\nvacated that decision.\\n\\n Arizona executed Wood a day after the stay was vacated.\\nWood’s execution was botched in several ways. According\\nto the allegations in the plaintiffs’ complaint, Wood rose up\\nand gasped for air about 12 minutes into his execution, after\\nfirst appearing to be sedated. He continued to struggle to\\nbreathe until he died, nearly two hours after the drugs were\\nfirst administered. During that time, Wood was\\nadministered 15 doses of lethal-injection drugs, even though\\nArizona’s protocol calls for only two. The execution team\\nalso failed to perform consciousness checks before each\\ninjection, as they were required to do. According to\\n\\n FIRST AMENDMENT COALITION V. RYAN 7\\n\\njournalists who attended the execution, Wood appeared to be\\nin agony throughout the process.\\n\\n After Wood’s execution, the First Amendment Coalition\\njoined the inmates in filing the First Amended Complaint.\\nThe parties agreed to stay the litigation until the ADC\\npublished a set of revised execution procedures. The district\\ncourt lifted the stay after the new procedures were published,\\nat which point the plaintiffs filed the operative Second\\nAmended Complaint.\\n\\n As relevant to this appeal, the plaintiffs challenge three\\nof Arizona’s practices under the First Amendment. We\\nexplain these practices in some detail below. The plaintiffs\\nalso asserted various Eighth Amendment, due process, and\\nequal protection claims. Those claims have been dismissed\\nor settled by the parties.\\n\\n First, the plaintiffs claim that Arizona unconstitutionally\\nrestricts the ability of execution witnesses to hear the sounds\\nof the entire execution process. Under Arizona’s current\\nprocedures, witnesses observe the execution in a designated\\nwitness room adjacent to the execution room. Although this\\nroom has windows looking into the execution room, those\\nwindows are covered by curtains during the preliminary\\nsteps of the execution. Witnesses view the prisoner through\\nclosed-circuit monitors as he is secured on the table in the\\nexecution room, makes his last statement, and has\\nintravenous lines inserted. During the initial procedures, the\\nwitnesses can listen to the sounds in the execution room\\nthrough speakers connected to an overhead microphone.\\n\\n After the intravenous lines are inserted, execution team\\nmembers turn off the closed-circuit monitors and open the\\ncurtains to the execution room. They also turn off the\\noverhead microphone. At that point, the witnesses can still\\n\\n8 FIRST AMENDMENT COALITION V. RYAN\\n\\nview the execution, but they can no longer hear the sounds\\nfrom the execution room, other than in brief moments when\\nexecution team members turn on the execution-room\\nmicrophone to give updates about the prisoner’s level of\\nconsciousness. In their complaint, the plaintiffs seek an\\ninjunction that would allow witnesses to hear the sounds of\\nthe entire execution proceeding, from the time that the\\nprisoner is brought into the execution room to the time of\\ndeath.\\n\\n Second, the plaintiffs claim that ADC officials have\\nviolated their First Amendment rights by failing to disclose\\ncertain information regarding the source and quality of the\\nlethal-injection drugs that will be used in the inmates’\\nexecutions. Arizona’s procedures require the Department of\\nCorrections to disclose some information about the drug\\nprotocol to be used in an execution. That information\\nincludes the chemical composition and dosages of the drugs,\\nas well as the procedures for administering them. The\\nprocedures also require officials to ensure that the drugs are\\nnot expired and are properly stored. In their complaint, the\\nplaintiffs request additional information regarding the\\nmanufacturers, sellers, lot numbers, National Drug Codes,\\nand expiration dates of the drugs.\\n\\n Third, the plaintiffs claim that ADC officials are\\nviolating the First Amendment by failing to disclose the\\nqualifications of each execution team member who will\\ninsert intravenous lines into the inmates. Arizona’s\\nprocedures require such individuals to be “currently certified\\nor licensed within the United States” to place intravenous\\nlines. The procedures specify that the individual may be a\\nphysician, physician assistant, nurse, emergency medical\\ntechnician, paramedic, military corpsman, or any other\\ncertified or licensed personnel. The plaintiffs argue that\\n\\n FIRST AMENDMENT COALITION V. RYAN 9\\n\\nmore specific information regarding each team member’s\\nqualifications is necessary because under the current\\nprocedures, an amateur with an online certificate would be\\nauthorized to insert the intravenous lines. The plaintiffs thus\\nseek documentation from the ADC to establish that the\\nexecution team members who will insert intravenous lines\\nare qualified to do so.\\n\\n The plaintiffs advance two theories under the First\\nAmendment to challenge the practices described above.\\nThey first challenge Arizona’s practices as violating their\\nFirst Amendment right of access to governmental\\nproceedings. That right guarantees the public and the press\\na measure of access to governmental proceedings, to ensure\\nthat public discussion of governmental affairs is informed.\\nSee Globe Newspaper Co. v. Superior Court, 457 U.S. 596,\\n604–05 (1982). Under this theory, the plaintiffs contend,\\nADC officials are violating the First Amendment by limiting\\naccess to the sounds of the execution process and by\\nconcealing information regarding execution drugs and\\npersonnel, thereby depriving the public of information\\nnecessary to have an informed debate about capital\\npunishment in Arizona.\\n\\n The plaintiffs also assert a separate claim under the First\\nAmendment predicated on violation of the inmates’ right of\\naccess to the courts. That right guarantees prisoners a\\nmeaningful opportunity to bring legal challenges to their\\nsentences and the conditions of their confinement. See\\nHebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).\\nAccording to the complaint, ADC officials are violating the\\ninmates’ First Amendment rights by limiting their access to\\nimportant information about the execution process, thus\\nhindering their ability to challenge the constitutionality of\\ntheir executions.\\n\\n10 FIRST AMENDMENT COALITION V. RYAN\\n\\n The district court dismissed the plaintiffs’ First\\nAmendment claims under Federal Rule of Civil Procedure\\n12(b)(6). The court held that the right of access to\\ngovernmental proceedings does not encompass either the\\nright to hear the sounds of the execution process or the right\\nto obtain the requested information regarding execution\\ndrugs and personnel. The district court’s decision turned\\nlargely on its reading of California First Amendment\\nCoalition v. Woodford, 299 F.3d 868 (9th Cir. 2002), which\\nheld that the right of access to governmental proceedings\\nincludes the right to view executions in their entirety. Id. at\\n873–77. The district court construed the holding of that case\\nas limited to the right to view executions, not the right to hear\\nthe sounds of executions or the right to obtain information\\nregarding execution drugs and personnel. The court also\\nconcluded that the plaintiffs had not plausibly alleged a\\nhistorical tradition or the functional importance of access to\\nexecution sounds and information, as required by the\\nrelevant First Amendment test.\\n\\n The district court rejected the plaintiffs’ other First\\nAmendment theory as well. The court explained that the\\nFirst Amendment right of access to the courts does not\\ninclude the right to discover grievances. In the court’s view,\\nthe inmates are requesting access to execution sounds and\\ninformation about execution drugs and personnel in order to\\ndiscover whether they can assert a colorable Eighth\\nAmendment claim. The court concluded as a matter of law\\nthat the inmates are not entitled to such information under\\nthe First Amendment right of access to the courts.\\n\\n II\\n\\n We turn first to the claim that ADC officials have\\nviolated the plaintiffs’ right of access to governmental\\nproceedings.\\n\\n FIRST AMENDMENT COALITION V. RYAN 11\\n\\n A\\n\\n We conclude that the First Amendment right of access to\\ngovernmental proceedings encompasses a right to hear the\\nsounds of executions in their entirety. We also conclude that\\non the facts alleged, Arizona’s restrictions on press and\\npublic access to the sounds of executions impermissibly\\nburden that right. We thus reverse the district court’s\\ndecision as to this restriction.\\n\\n 1\\n\\n Our conclusion follows directly from the holding and\\nreasoning of Woodford. In that case, we considered a\\nCalifornia regulation that prevented witnesses from\\nobserving the initial steps of the execution process, during\\nwhich the prisoner is brought into the execution chamber,\\nsecured to the gurney, and has the intravenous lines inserted.\\nSee Woodford, 299 F.3d at 871. We held that the public has\\na First Amendment right to view executions in their entirety.\\nSee id. at 877. In reaching that conclusion, we applied the\\ntwo-part test for analyzing whether a First Amendment right\\nof access to governmental proceedings exists: (1) “whether\\nthe place and process have historically been open to the press\\nand general public,” and (2) “whether public access plays a\\nsignificant positive role in the functioning of the particular\\nprocess in question.” Press-Enterprise Co. v. Superior\\nCourt, 478 U.S. 1, 8 (1986) (Press-Enterprise II). We\\ndetermined that public viewing of executions in their entirety\\nis rooted in historical tradition and that public observation\\nplays a significant role in the functioning of capital\\npunishment. See Woodford, 299 F.3d at 875–77. We\\ntherefore ruled that the public has a qualified First\\nAmendment right to view executions in their entirety.\\n\\n12 FIRST AMENDMENT COALITION V. RYAN\\n\\n We first consider here whether the plaintiffs in this case\\nhave alleged facts that state a plausible claim that the ADC\\nhas violated their First Amendment right to hear the sounds\\nof executions in their entirety. As in Woodford, we apply the\\nPress-Enterprise II test to determine whether such a First\\nAmendment right of access exists.\\n\\n The historical tradition of public access described in\\nWoodford includes the ability to hear the sounds of\\nexecutions. In the Second Amended Complaint, the\\nplaintiffs cite historical examples in which the public and the\\npress were able to attend hangings with no barriers between\\nthe prisoners and witnesses. These allegations echo our\\nreasoning in Woodford. We explained there that executions\\nhave historically been open to the press and the general\\npublic. See id. at 875–76. The crowds that gathered to watch\\nthose executions could, no doubt, hear the sounds of the\\nentire execution process, even if not with perfect clarity.\\n\\n The defendants argue that, even if that was the case, the\\nplaintiffs are seeking an amplified sound broadcast from the\\nexecution room, which is not rooted in historical tradition.\\nBut that mischaracterizes the nature of the plaintiffs’ request.\\nArizona has chosen to have witnesses view the events\\nthrough a soundproof window. The plaintiffs are asking for\\nthe microphone in the execution room to be left on during\\nthe entire execution process not because they want amplified\\naudio, but because they want witnesses to be able to hear the\\nsounds as they would if they were viewing the execution\\ndirectly rather than through a soundproof window.\\n\\n The plaintiffs have also plausibly alleged that such\\naccess would play a significant role in the proper functioning\\nof capital punishment. They allege that allowing witnesses\\nto hear the sounds of the entire execution process will ensure\\ninformed and accurate media coverage of the event, which\\n\\n FIRST AMENDMENT COALITION V. RYAN 13\\n\\nin turn will help the public determine whether executions in\\nArizona are being carried out in a humane and lawful\\nmanner. To support this allegation, they cite historical\\nexamples in which media coverage of executions has\\nsparked public debate about the appropriate method of\\nexecution in Arizona.\\n\\n The defendants argue that leaving the microphone on\\nduring the entire process will provide no additional benefit\\nto the functioning of capital punishment in Arizona. They\\npoint out that journalists were able to report on the choking\\nand coughing sounds that Joseph Wood made during his\\nexecution under the State’s current procedures. However,\\nalthough reporters could hear those sounds during the brief\\nmoments when Wood’s execution team provided updates,\\nthey could not hear anything else in the nearly two hours it\\ntook for Wood to die. Lifting Arizona’s restriction on the\\nwitnesses’ ability to hear would ensure more comprehensive\\ncoverage of executions in the State.\\n\\n As we explained in Woodford, the plaintiffs have alleged\\na legally cognizable theory. Execution witnesses need to be\\nable to observe and report on the entire process so that the\\npublic can determine whether lethal injections are fairly and\\nhumanely administered. See id. at 876. Barring witnesses\\nfrom hearing sounds after the insertion of intravenous lines\\nmeans that the public will not have full information\\nregarding the administration of lethal-injection drugs and the\\nprisoner’s experience as he dies.\\n\\n 2\\n\\n Although we hold that, on the facts alleged, the public\\nand the press have a constitutional right to hear the sounds\\nof the entire execution process, that does not end our inquiry.\\nIn Woodford, after we held that the public has a qualified\\n\\n14 FIRST AMENDMENT COALITION V. RYAN\\n\\nFirst Amendment right to view executions, we went on to\\nanalyze whether California’s restriction on such observation\\nimpermissibly burdened that right. See id. at 885. We\\nconcluded that it did.\\n\\n First, we determined that a deferential standard of review\\nis appropriate in this context because executions take place\\ninside prisons, and corrections officials must have broad\\ndiscretion to carry out the complex task of prison\\nadministration. See id. at 877–79. We thus analyzed\\nwhether California’s regulation was “reasonably related to\\nlegitimate penological objectives, or whether it represent[ed]\\nan exaggerated response to those concerns.” Id. at 878\\n(quoting Turner v. Safley, 482 U.S. 78, 87 (1987)). We\\nexplained that there needed to be a “closer fit” between the\\nregulation and any legitimate penological objectives because\\nthe California regulation at issue did not leave room for case-\\nby-case discretion. See id. at 879. The restriction\\ncategorically banned witnesses from viewing the initial\\nprocedures of executions, regardless of whether there were\\nany specific security concerns.\\n\\n We then considered the four factors relevant to the\\ninquiry: (1) whether there is a “valid, rational connection\\nbetween the prison regulation and the legitimate\\ngovernmental interest put forward to justify it,” (2) “whether\\nthere are alternative means of exercising the right that\\nremain open to prison inmates,” (3) what “impact\\naccommodation of the asserted constitutional right will have\\non guards and other inmates, and on the allocation of prison\\nresources generally,” and (4) whether there are “obvious,\\neasy alternatives . . . that fully accommodate[] the prisoner’s\\nrights at de minimis cost to valid penological interests.”\\nTurner, 482 U.S. at 89–91 (internal quotation marks\\nomitted). We concluded that the California viewing\\n\\n FIRST AMENDMENT COALITION V. RYAN 15\\n\\nrestriction was not reasonably related to a legitimate\\npenological interest and thus was unconstitutional. See\\nWoodford, 299 F.3d at 879–85.\\n\\n The same deferential standard of review applies here as\\nwell. As in Woodford, we are dealing with a regulation\\nregarding executions that will take place inside a prison. See\\nid. at 877–79. We consider the four relevant factors to\\ndetermine whether Arizona’s restrictions on access to the\\nsounds of executions are reasonably related to legitimate\\npenological objectives. As Woodford instructed, we require\\na “closer fit” between the restriction and any legitimate\\npenological interests because the regulation does not allow\\nfor case-by-case discretion. See id. at 879. That is, Arizona\\nimposes a categorical ban on hearing the sounds of\\nexecutions after the intravenous lines are inserted, regardless\\nof whether there are any specific security risks.\\n\\n The plaintiffs have alleged facts that state a plausible\\nclaim that Arizona has unconstitutionally restricted the\\nability of witnesses to hear the sounds of executions, even\\nunder the deferential standard of review applied in\\nWoodford. The defendants attempt to justify the restrictions\\nby arguing that they have a legitimate penological interest in\\nensuring that execution team members are not publicly\\nidentified or attacked. But, according to the factual\\nallegations in the plaintiffs’ complaint, witnesses can hear\\nsounds from the execution room as the execution team\\nbrings the prisoner into the room, secures him to the table,\\nand inserts the intravenous lines. Thus, to the extent that\\nexecution team members could be identified by the sound of\\ntheir voices, witnesses can already hear their voices during\\nthe initial stages of the execution. The defendants also argue\\nthat allowing witnesses to hear the sounds of the entire\\nexecution process could increase the risk of litigation and\\n\\n16 FIRST AMENDMENT COALITION V. RYAN\\n\\ncause execution team members to second-guess their\\nactions. We reject this argument because Arizona does not\\nhave a legitimate penological interest in hampering efforts\\nto ensure the constitutionality of its executions. The\\nplaintiffs have thus plausibly alleged that there is no valid,\\nrational connection between the regulation and cognizable\\ngovernmental interests. See Turner, 482 U.S. at 89–90.\\n\\n The plaintiffs have also plausibly alleged that, with\\nArizona’s restrictions in place, there are no alternative\\nmeans for the public to exercise the right to hear the sounds\\nof executions in their entirety. See id. at 90. As we\\nexplained in Woodford, the public has a right to independent\\neyewitness accounts of the entire execution process. See\\nWoodford, 299 F.3d at 883–84. Reports of executions by the\\nsame prison officials who carry them out are not adequate\\nsubstitutes. See id. at 883.\\n\\n Finally, the plaintiffs have plausibly alleged that there is\\nan available, low-cost alternative to fully accommodate the\\nFirst Amendment right: leaving the microphone in the\\nexecution room on throughout the entire process. See\\nTurner, 482 U.S. at 90–91. This accommodation would not\\nhave a significant impact on guards, other inmates, or the\\nallocation of prison resources. See id. at 90. According to\\nthe plaintiffs’ allegations and Arizona’s own records, a\\nmicrophone is already set up to carry sounds from the\\nexecution room to the witness room during the initial stages\\nof the execution process. Leaving the microphone on for the\\nrest of the process would involve at most only a de minimis\\ncost.\\n\\n B\\n\\n The plaintiffs also assert that the First Amendment right\\nof access to governmental proceedings entitles them to\\n\\n FIRST AMENDMENT COALITION V. RYAN 17\\n\\ninformation regarding the manufacturers, sellers, lot\\nnumbers, National Drug Codes, and expiration dates of\\nlethal-injection drugs, as well as documentation regarding\\nthe qualifications of certain execution team members. We\\nagree with the district court that neither the public nor the\\npress has a First Amendment right of access to this\\ninformation.\\n\\n As the Supreme Court originally conceptualized it, the\\nFirst Amendment right of access to governmental\\nproceedings refers to the right of the public to attend and\\nobserve those proceedings. In the initial cases recognizing\\nthe right, the Court held that the public has the right to attend\\ncriminal trials, see Globe Newspaper Co., 457 U.S. at 606;\\nRichmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580\\n(1980) (plurality opinion), the jury-selection process, see\\nPress-Enterprise Co. v. Superior Court, 464 U.S. 501, 512\\n(1984) (Press-Enterprise I), and preliminary hearings, see\\nPress-Enterprise II, 478 U.S. at 13. In situations in which\\nother interests justify the closure of a proceeding, the Court\\nheld that the public has a right to access a transcript of the\\nproceeding within a reasonable time. See Press-Enterprise\\nII, 478 U.S. at 13; Press-Enterprise I, 464 U.S. at 512. Our\\ncourt has since extended the right of access to various\\ndocuments filed in criminal proceedings. For example, we\\nhave held that the public has the right to access plea\\nagreements, see Oregonian Publishing Co. v. United States\\nDistrict Court, 920 F.2d 1462, 1465–66 (9th Cir. 1990),\\ndocuments filed in pretrial proceedings, see Associated\\nPress v. United States District Court, 705 F.2d 1143, 1145\\n(9th Cir. 1983), and documents filed in post-conviction\\nproceedings, see CBS, Inc. v. United States District Court,\\n765 F.2d 823, 825 (9th Cir. 1985).\\n\\n18 FIRST AMENDMENT COALITION V. RYAN\\n\\n The plaintiffs analogize information regarding execution\\ndrugs and personnel to the documents described above.\\nThey argue that the information is just as important to\\nunderstanding executions as the documents at issue in our\\nprior cases are to understanding criminal proceedings, and\\nthat the public therefore has a right of access to the\\ninformation sought here. The plaintiffs correctly point out\\nthat we held that such a right likely exists in Wood, 759 F.3d\\nat 1082–86, but that decision was summarily vacated by the\\nSupreme Court.\\n\\n We conclude that the requested information differs from\\nthe requested documents in precedential cases in material\\nways and that the public does not have a right of access to\\nthe information at issue here. As explained above, the\\nSupreme Court has held that the public has a right of access\\nto transcripts of various criminal proceedings. See, e.g.,\\nPress-Enterprise II, 478 U.S. at 13 (preliminary hearing);\\nPress-Enterprise I, 464 U.S. at 512 (jury-selection process).\\nInformation regarding execution drugs and personnel bears\\nno resemblance to a transcript. It does not provide a\\ndescriptive account of the execution process, as a transcript\\nwould. The reason for providing the public with access to a\\ntranscript also does not apply here. The Supreme Court has\\nexplained that a transcript may serve as a substitute for\\nholding an open governmental proceeding when other\\ninterests justify the closure of that proceeding. See Press-\\nEnterprise I, 464 U.S. at 512. There is no need for a\\ntranscript in this context, since the public already has a right\\nto attend and observe executions. See Woodford, 299 F.3d\\nat 877.\\n\\n Information regarding execution drugs and personnel\\nalso differs from other documents to which the public has a\\nright of access. We have held that the public has the right to\\n\\n FIRST AMENDMENT COALITION V. RYAN 19\\n\\naccess documents filed in certain judicial proceedings. See,\\ne.g., Oregonian Publishing Co., 920 F.2d at 1465–66 (plea\\nagreement and related documents); CBS, Inc., 765 F.2d at\\n825 (documents filed in post-conviction proceedings);\\nAssociated Press, 705 F.2d at 1145 (documents filed in\\npretrial proceedings). Those documents are part of the\\nofficial judicial record. See CBS, Inc., 765 F.2d at 826. We\\nhave never held that the right of access extends to documents\\nbeyond those in the record just because they may shed light\\non a criminal proceeding. For example, we have never held\\nthat the First Amendment gives the public a right to access\\njudicial conference notes or to all documents in the\\nprosecutor’s possession, and the Supreme Court has\\nsuggested that the First Amendment does not provide for\\nsuch a right. See Pell v. Procunier, 417 U.S. 817, 833–34\\n(1974).\\n\\n Unlike the documents to which the public has a right of\\naccess, the requested information is not part of any official\\nrecord of the execution proceeding. It is simply information\\nin the government’s possession that would enhance the\\nunderstanding of executions. But, as the Supreme Court has\\nstated, the First Amendment does not “mandate[] a right of\\naccess to government information or sources of information\\nwithin the government’s control.” Houchins v. KQED, Inc.,\\n438 U.S. 1, 15 (1978) (plurality opinion).\\n\\n We also reject the plaintiffs’ argument that the holding\\nof Woodford—that the public has a right to view executions\\nin their entirety—directly resolves this issue. According to\\nthe plaintiffs, in analogous medical settings, witnesses\\nwould be able to view drug labels and the nametags of\\nmedical personnel, which would allow them to observe\\ninformation regarding the source of drugs and the\\nqualifications of medical personnel. The plaintiffs argue that\\n\\n20 FIRST AMENDMENT COALITION V. RYAN\\n\\nknowing the source of the drugs would, in turn, provide\\ninformation about the quality of the drugs. The plaintiffs\\nthus contend that the right to view executions in their entirety\\nincludes the right to access the requested information\\nregarding execution drugs and personnel.\\n\\n Woodford’s holding does not extend that far. There, we\\nheld that the public and the press have the right to view\\nexecutions in their entirety, “including those ‘initial\\nprocedures’ that are inextricably intertwined with the\\nprocess of putting the condemned inmate to death.”\\nWoodford, 299 F.3d at 877. We did not hold that there is a\\nFirst Amendment right to examine executions in minute\\ndetail, such that witnesses could see the drug labels and the\\nnametags of execution team members. Nor did we hold that\\nthe public is entitled to all information that is “inextricably\\nintertwined” with executions. Woodford did not change the\\ndefault rule that the right of access “does not extend to every\\npiece of information that conceivably relates to a\\ngovernmental proceeding, even if the governmental\\nproceeding is itself open to the public.” Wood, 759 F.3d at\\n1092 (Bybee, J., dissenting).\\n\\n Other courts have reached the same conclusion. The\\nSixth Circuit concluded that the Press-Enterprise II test does\\nnot apply in this context, and held that the public does not\\nhave a First Amendment right of access to information\\nregarding the identities of execution team members or the\\nidentities of entities that transport, manufacture, compound,\\nor supply lethal-injection drugs. See Phillips v. DeWine,\\n841 F.3d 405, 417–20 (6th Cir. 2016). Similarly, the Eighth\\nCircuit has held that the public does not have a First\\nAmendment right to know the identities of the entities that\\nsupply and compound lethal-injection drugs. See Zink v.\\nLombardi, 783 F.3d 1089, 1111–13 (8th Cir. 2015). And the\\n\\n FIRST AMENDMENT COALITION V. RYAN 21\\n\\nEleventh Circuit has held that the public does not have a\\nright to know the qualifications of execution team members\\nor the source of lethal-injection drugs. See Wellons v.\\nCommissioner, 754 F.3d 1260, 1266–67 (11th Cir. 2014).\\n\\n Given Arizona’s checkered past with executions, we are\\ntroubled by the lack of detailed information regarding\\nexecution drugs and personnel. Such information would\\nundoubtedly aid the public and death-row inmates in\\nmonitoring the constitutionality of Arizona’s execution\\nproceedings. However, as the Supreme Court has held, the\\nFirst Amendment does not mandate the disclosure of “all the\\ninformation provided by [freedom of information] laws.”\\nMcBurney v. Young, 569 U.S. 221, 232 (2013). Thus,\\nalthough the inmates may be able to assert a procedural due\\nprocess right to obtain the information they seek, see Lopez,\\n680 F.3d at 1083–84 (Berzon, J., concurring in part and\\ndissenting in part), neither the inmates nor the First\\nAmendment Coalition possesses such a right under the First\\nAmendment.\\n\\n Because the First Amendment right of access to\\ngovernmental proceedings does not entitle the plaintiffs to\\ninformation regarding execution drugs and personnel as a\\nmatter of law, the district court did not abuse its discretion\\nby dismissing with prejudice those aspects of the plaintiffs’\\nclaim relating to such information.\\n\\n III\\n\\n We turn next to the plaintiffs’ claim that Arizona’s\\nrestrictions violate the inmates’ First Amendment right of\\naccess to the courts. We agree with the district court that this\\nclaim fails as a matter of law.\\n\\n22 FIRST AMENDMENT COALITION V. RYAN\\n\\n We have held that there are two types of claims that can\\nbe raised in this context. See Silva v. Di Vittorio, 658 F.3d\\n1090, 1102–04 (9th Cir. 2011), overruled on other grounds\\nby Coleman v. Tollefson, 135 S. Ct. 1759 (2015). The first\\ncategory of claims involves the denial of adequate law\\nlibraries and other legal assistance to prisoners, which\\nprevents them from challenging their sentences and the\\nconditions of their confinement. See Hebbe, 627 F.3d\\nat 342–43. The second category of claims involves active\\ninterference with a prisoner’s right to litigate, such as seizing\\nand withholding the prisoner’s legal files. See Silva,\\n658 F.3d at 1102–04. Neither of those rights is implicated\\nhere, for the plaintiffs do not contend that Arizona officials\\nhave limited the inmates’ ability to litigate in any way.\\n\\n The Supreme Court has explained that the First\\nAmendment right of access to the courts does not include the\\nright of prisoners to “discover grievances[] and to litigate\\neffectively once in court.” Lewis v. Casey, 518 U.S. 343,\\n354 (1996) (emphasis omitted). That is what the inmates\\nseek here. According to the Second Amended Complaint,\\nthe inmates are seeking access to execution sounds and\\ninformation regarding execution drugs and personnel in\\norder to discover whether they have a colorable claim that\\ntheir executions will be carried out in violation of the Eighth\\nand Fourteenth Amendments. The First Amendment right\\nof access to the courts does not entitle the inmates to such\\ninformation. See Phillips, 841 F.3d at 420; Zink, 783 F.3d\\nat 1108; Wellons, 754 F.3d at 1267.\\n\\n Because the inmates’ right-of-access-to-the-courts claim\\nfails as a matter of law, the district court did not abuse its\\ndiscretion by dismissing this claim without leave to amend.\\n\\n AFFIRMED in part, REVERSED in part, and\\nREMANDED.\\n\\n FIRST AMENDMENT COALITION V. RYAN 23\\n\\n The parties shall bear their own costs.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4438759/\", \"author_raw\": \"WATFORD, Circuit Judge:\"}, {\"author\": \"BERZON, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"BERZON, Circuit Judge, concurring in part and dissenting\\nin part:\\n\\n I join Parts I and II of the Court’s opinion but dissent in\\npart as to Part III.\\n\\n For one of the initial plaintiffs in this case, any\\nintervention we might now order may be entirely too late.\\nThe botched execution of Joseph Wood took one hundred\\nand seventeen minutes. This Court had stayed Wood’s\\nexecution, holding that, until Arizona provided the “name\\nand provenance of the drugs to be used” and “the\\nqualifications of the . . . personnel” to be enlisted, his\\nexecution threatened irreparable harm. Wood v. Ryan,\\n759 F.3d 1076, 1088 (9th Cir.), vacated 573 U.S. 976\\n(2014). 1 The State, we held, could not execute Wood as long\\nas it continued to conceal “reliable information” about\\nexecution procedures which are “invasive, possibly painful,\\nand may give rise to serious complications.” Id. at 1085\\n(quoting Cal. First Amendment Coal. v. Woodford, 299 F.3d\\n868, 876 (9th Cir.2002)). But despite Arizona’s assurances\\nthat “nearly every detail” of its execution protocol had been\\nmade public, Wood’s execution in fact deviated from that\\nprotocol in significant ways, culminating in the injection of\\nthirteen more doses of lethal drugs than the protocol\\nauthorized. And despite the serious possibility that Wood’s\\nexecution inflicted “needless suffering,” Baze v. Rees,\\n\\n 1\\n The Supreme Court vacated our stay of Wood’s execution, so the\\nWood opinion is not precedential. I cite to the opinion as part of the\\nhistorical record of Wood’s execution.\\n\\n24 FIRST AMENDMENT COALITION V. RYAN\\n\\n553 U.S. 35, 50 (2008), Arizona has ensured that it remains\\nunclear what went so tragically wrong—and why its\\nassurances proved unreliable.\\n\\n In seeking to prevent his likely-unconstitutional\\nexecution, Wood relied upon an eerily similar case: Towery\\nv. Brewer, 672 F.3d 650, 661 (9th Cir. 2012). Robert\\nTowery’s execution had also deviated from Arizona’s\\npurported protocol, resulting in an hour-long ordeal as\\npersonnel struggled to set IV lines, doubtless producing\\nconsiderable pain. See Lopez v. Brewer, 680 F.3d 1068,\\n1073–75 (9th Cir. 2012). In Lopez, this Court noted the\\ntension between Arizona’s “touting of the public nature of\\nthe execution” and its “shrouding” of crucial details of the\\nexecution process “in a cloak of secrecy.” Id. at 1075. I\\nseparately argued that the “impenetrable roadblocks”\\nerected by Arizona to obtaining such information denied\\ndeath-row inmates their procedural due process right to have\\nEighth Amendment challenges heard at a meaningful time\\nand in a meaningful manner, Id. at 1082 (Berzon, J.,\\nconcurring in part and dissenting in part). Despite these\\nadmonitions, Arizona has continued to conceal the precise\\nconditions of Towery’s death.\\n\\n These deviations in protocol are not isolated. In other\\nexecutions, Arizona has obtained its lethal injection drugs\\nillegally or administered them in unauthorized dosages. And\\non at least one occasion, the State issued a warrant of\\nexecution without compliance with provisions of its protocol\\nwhich required it to ensure that that the drugs it planned to\\nuse had not expired, discovering its oversight only two days\\nbefore the execution.\\n\\n Arizona is now deploying a range of strategies to\\nobstruct any effort to understand the difficulties which\\nplague its executions. First, it grants those who carry out its\\n\\n FIRST AMENDMENT COALITION V. RYAN 25\\n\\nexecutions broad discretion to eliminate the access it\\nordinarily allows. Its protocol authorizes Arizona\\nDepartment of Corrections (“ADC”) officials to cut the\\nmicrophone if the condemned, in making his final statement,\\nmakes any utterance which officials deem “vulgar[]” or\\n“intentionally offensive.” The threatened use of this\\ndiscretion forced Towery to develop a code for\\ncommunicating with his counsel from the execution\\nchamber, a code by which he may have indicated that the\\nexecution procedures were causing him pain. Lopez,\\n680 F.3d at 1082 (Berzon, J., concurring in part and\\ndissenting in part). The potential use of such a code in future\\nexecutions is not a reassuring prospect, for ADC officials\\nalso retain discretion to close the window curtains of the\\nexecution chamber or to remove witnesses from the facility\\nif they deem either course of action “merit[ed]” by a\\n“legitimate penological objective.”\\n\\n Moreover, Arizona now withholds information\\nconcerning the source and quality of its lethal-injection\\ndrugs. ADC officials had previously provided this\\ninformation, pursuant to a court order which they declined\\nto appeal. The officials justify this change by invoking an\\ninterest in maintaining confidentiality for the sources of\\nArizona’s lethal-injection drugs. But they offer no evidence\\nthat their previous compliance with the court order\\nencumbered their administration of subsequent executions.\\nWood, 759 F.3d at 1086. Even assuming the legitimacy of\\nthe State’s interest, that interest does not explain Arizona’s\\nchoice to withhold the same sorts of information provided\\nfor previous executions, which would not compromise\\nconfidentiality. Disclosure of the drugs’ expiration dates, for\\nexample, would not reveal the identities of their\\nmanufacturers. Given the poor fit between the changes\\nArizona has made to its execution procedures and the\\n\\n26 FIRST AMENDMENT COALITION V. RYAN\\n\\nreasons it has offered to justify them, we can only wonder,\\nat this stage, as to Arizona’s true objectives.\\n\\n The remaining plaintiffs in this case now challenge as\\nforbidden by the First Amendment the shroud of secrecy that\\nArizona maintains around its executions. While I join Parts\\nI and II of the Court’s opinion, I write separately to call\\nattention to the inmates’ plausible allegations that Arizona,\\nthrough its deliberate concealment of information about its\\nexecution process, has violated their First Amendment right\\nof access to the courts. I also write to reiterate my view that\\nArizona’s approach to devising, announcing, and recording\\nits execution procedures denies condemned inmates their\\nright under the Fourteenth Amendment to procedural due\\nprocess of law.\\n\\n 1. As the majority notes, this Court has recognized two\\ntypes of access-to-courts claims: “those involving prisoners’\\nright to affirmative assistance” and “those involving\\nprisoners’ rights to litigate without active interference.”\\nSilva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011)\\n(emphases in original), overruled on other grounds by\\nColeman v. Tollefson, 135 S. Ct. 1759 (2015). I agree with\\nthe majority that the inmates have not alleged facts that\\nwould give rise to a cause of action of the former type. As a\\nFirst Amendment matter, they have no affirmative\\nentitlement to information regarding the source, quality,\\nstorage conditions, or expiration dates of Arizona’s lethal-\\ninjection drugs or the qualifications of its execution-team\\nmembers.\\n\\n But I part ways with the majority when it comes to the\\nlatter type of claim. The inmates have plausibly alleged that\\nArizona has concealed information in a deliberate effort to\\nlimit their ability to litigate the conditions under which they\\n\\n FIRST AMENDMENT COALITION V. RYAN 27\\n\\nwill be put to death. If that is true, then Arizona has actively\\ninterfered with rights protected by the First Amendment.\\n\\n The aforementioned distinction is not of the Ninth\\nCircuit’s making. In Casey v. Lewis, the Supreme Court\\nmade clear that the right of access to courts does not compel\\nthe state affirmatively to “enable the prisoner to discover\\ngrievances, and to litigate effectively once in court,”\\n518 U.S. 343, 354 (1996), even as it acknowledged that the\\nright is implicated where the state “hinder[s]” a prisoner’s\\n“efforts to pursue a legal claim,” id. at 351. Other circuits\\nhave similarly recognized that access to the courts must be\\nfree from “undue interference,” Snyder v. Nolen, 380 F.3d\\n279, 291 (7th Cir. 2004), in that the state “may not erect\\nbarriers that impede the right,” John L. v. Adams, 969 F.2d\\n228, 235 (6th Cir. 1992). Cases involving this aspect of the\\nright turn on the intention with which the state acts. The\\nproscribed intention of interference might be pursued in any\\nnumber of ways.\\n\\n ADC officials urge that the inmates’ access-to-courts\\nclaims fail as a matter of law because the inmates do not\\nallege that they are “physically unable” to file Eighth\\nAmendment claims, “only that they are unable to obtain the\\ninformation needed to discover” a potential violation.\\nWilliams v. Hobbs, 658 F.3d 842, 852 (8th Cir. 2011). But\\nthe problem here is not that the inmates are unable to obtain\\nany particular information; it is rather that the State is alleged\\nto have concealed such information in a deliberate attempt\\nto “hinder[]” their litigation efforts. Casey, 518 U.S. at 351.\\n\\n We have never limited our “active interference”\\njurisprudence to interference with an inmate’s ability\\n(physical or otherwise) to file a claim. See Silva, 658 F.3d\\nat 1102–03. Nor has the Supreme Court embraced such a\\nlimitation. In Christopher v. Harbury, plaintiff Jennifer\\n\\n28 FIRST AMENDMENT COALITION V. RYAN\\n\\nHarbury alleged a deprivation of her right of access to the\\ncourts where government officials intentionally deceived her\\nby concealing information that her husband was being\\ndetained and tortured by foreign military officers who were\\npaid agents of the Central Intelligence Agency. 536 U.S.\\n403, 405–08 (2002). If not for the government’s deception,\\nHarbury argued, she “could have brought a lawsuit that\\nmight have saved her husband’s life.” Id. at 405. The Court\\nrejected Harbury’s argument, but not on the ground that the\\nright of access to the courts cannot be violated by deliberate\\ngovernment concealment of information. Rather, Harbury’s\\nright-of-access claim failed because she had not identified an\\nunderlying cause of action that had been compromised as a\\nresult of the government’s deception, nor had she sought any\\nrelief that would otherwise be unavailable in a subsequent\\nlawsuit. Id. at 415, 418–22. Had she alleged a “nonfrivolous”\\nunderlying claim with which the government had interfered\\n(one whose “arguable nature” offered “more than hope”) and\\na remedy for the government’s interference, her case could\\nnot have been dismissed. Id. at 416 (internal quotation marks\\nomitted).\\n\\n The inmates here, by contrast, have identified an\\nunderlying claim with which Arizona has allegedly\\ninterfered: that their impending executions threaten a serious\\n“risk of severe pain,” in violation of the Eighth Amendment.\\nBaze, 553 U.S. at 61. Given plaintiffs’ detailed allegations\\nconcerning the widespread difficulties involved in obtaining\\nlethal-injection drugs, the considerable dangers posed by\\nusing drugs obtained from illegal sources or at unauthorized\\ndosages, and Arizona’s troubling history of deviating from\\nits own lethal-injection drug protocols, including by\\nobtaining its drugs illegally, administering them at\\nunauthorized dosages, and failing to ensure appropriately\\nthat their expiration dates had not lapsed, the underlying\\n\\n FIRST AMENDMENT COALITION V. RYAN 29\\n\\nclaim is assuredly not frivolous. See Harbury, 536 U.S. at\\n416. Indeed, given that deviations in protocol marked the\\nexecutions of Robert Towery and Joseph Wood—executions\\nwhich, for all that the State has permitted us to know, may\\nwell have inflicted more pain than Baze allows—the\\n“arguable nature” of these claims offers “more than hope.”\\nId. at 416.\\n\\n The inmates have also sought an appropriate remedy: the\\ndemolition of those barriers which Arizona has erected in a\\ndeliberate attempt to interfere with their efforts to access the\\ncourts. The inmates have alleged, in copious detail, that\\nArizona has structured its protocol so as to maximize ADC\\nofficials’ discretion to deviate from standard procedure, and\\nthat officials have repeatedly exercised this discretion on a\\nlast-minute basis, making meaningful judicial review near\\nimpossible. Moreover, the inmates allege that Arizona’s\\nprevious use of a paralytic as part of its lethal-injection\\nprotocol may, by design, have served only to mask the pain\\nsuffered by those whom Arizona puts to death, preventing\\nthose still awaiting execution from sparing themselves\\nsimilar pain. As Judge Reinhardt observed: “[I]f a skilled\\nlawyer were instructing the state on how best to avoid any\\nmeaningful review of the constitutionality of its execution\\nprocedures, he would be hard pressed to improve on the\\nunconscionable regime that the state has adopted.” Lopez v.\\nBrewer, 680 F.3d 1084, 1095–96 (9th Cir. 2012) (Reinhardt,\\nJ., dissenting from denial of rehearing en banc) (emphasis in\\noriginal). Indeed, ADC officials themselves advance an\\ninterest in curtailing “the risk of litigation” as a legitimate\\npurpose for adopting at least some of their policies. Against\\nthis backdrop, the inmates’ assertion that Arizona has\\n“deliberately conceal[ed]” critical information about its\\nexecution process, actively interfering with their access to\\nthe courts, is more than plausible.\\n\\n30 FIRST AMENDMENT COALITION V. RYAN\\n\\n Additional First Amendment issues may be raised by the\\nState’s admission that its concealment of the sources of its\\nlethal-injection drugs is motivated by an interest in\\nsuppressing lawful protest directed at the drugs’\\nmanufacturers. But we need not reach such issues today.\\nArizona’s alleged interference with the inmates’ efforts to\\naccess the courts is sufficient.\\n\\n To be sure, the inquiry into motivational subtleties which\\nthe “active interference” standard demands is not easily\\nundertaken at the pleading stage. See Silva, 658 F.3d\\nat 1103–04. The inmates have plausibly alleged Arizona’s\\ndeliberate concealment of a range of information through\\nbarriers which take a variety of forms. On the merits, only\\nthose barriers proven to have been erected in a deliberate\\nattempt to interfere with litigation efforts could violate the\\nFirst Amendment. But the inmates must be permitted to\\nmake that showing. Today’s opinion denies them that\\nopportunity.\\n\\n 2. Were a procedural due process challenge before us,\\nwe could avoid such a searching inquiry into Arizona’s\\nintentions. We would ask whether Arizona’s execution\\nprocess deprives condemned inmates “the opportunity to be\\nheard at a meaningful time and in a meaningful manner,”\\nregardless of what might motivate the deprivation. Mathews\\nv. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v.\\nManzo, 380 U.S. 545, 552 (1965)). That the inmates are\\nunable to litigate meaningfully their liberty interest in\\navoiding an unconstitutionally painful execution would be\\nenough. See Serrano v. Francis, 345 F.3d 1071, 1078 (9th\\nCir. 2003).\\n\\n Relying upon procedural due process would offer the\\nadditional advantage of directing litigation efforts at the\\ntotality of the execution process. Rather than proceeding\\n\\n FIRST AMENDMENT COALITION V. RYAN 31\\n\\nbarrier by barrier, parsing Arizona’s reasons for adopting\\neach one, we would ask whether the barriers, taken together,\\namount to a procedural due process violation.\\n\\n This approach would also afford Arizona greater\\nflexibility in correcting the constitutional deficiencies of its\\nexecution protocols. In Lopez, I wrote that Arizona might\\nrectify its due process violations in any number of ways,\\n“including (1) providing a detailed written protocol that\\nrestricts the Director’s discretion and is actually followed in\\nexecutions; (2) keeping and making available detailed\\naccounts of the actual execution processes, including any\\nevidence of the impact on the pain perception by those\\nexecuted; (3) providing either for public access or for more\\nlimited access by counsel to the pre-execution proceedings.”\\n680 F.3d at 1084 (Berzon, J., concurring in part and\\ndissenting in part). It is disappointing that Arizona has\\ncontinued to decline that invitation. Its adoption of any one\\nof these suggestions would give the condemned inmates\\nmuch of what they seek.\\n\\n It may well be too late for Joseph Wood and Robert\\nTowery to vindicate their First Amendment rights of court\\naccess or their rights to due process of law. If nothing\\nchanges, it might soon be too late for some remaining\\nplaintiffs, as well.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4438759/\", \"author_raw\": \"BERZON, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"MARSHA S BERZON"},"judge2":{"kind":"string","value":"JOHNNIE B RAWLINSON"},"judge3":{"kind":"string","value":"PAUL J WATFORD"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4661506/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: First Amendment Coalition v. Charles Ryan\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nFIRST AMENDMENT COALITION OF No. 17-16330\nARIZONA, INC.; CHARLES MICHAEL\nHEDLUND; GRAHAM S. HENRY; D.C. No.\nDAVID GULBRANDSON; ROBERT 2:14-cv-01447-\nALLEN POYSON; TODD SMITH; NVW\nELDON M. SCHURZ; ROGER SCOTT,\n Plaintiffs-Appellants,\n OPINION\n v.\n\nCHARLES L. RYAN, Director of the\nArizona Department of Corrections;\nUNKNOWN PARTIES, named as: John\nDoes - unknown ADC Personnel, in\ntheir official capacities as\nEmployees, Contractors, and/or\nAgents of the Arizona Department of\nCorrections; GREG FIZER, Warden,\nASPC-Florence,\n Defendants-Appellees.\n\n Appeal from the United States District Court\n for the District of Arizona\n Neil V. Wake, District Judge, Presiding\n\n Argued and Submitted September 12, 2018\n San Francisco, California\n\n Filed September 17, 2019\n\n2 FIRST AMENDMENT COALITION V. RYAN\n\n Before: Marsha S. Berzon, Johnnie B. Rawlinson,\n and Paul J. Watford, Circuit Judges.\n\n Opinion by Judge Watford;\n Partial Concurrence and Partial Dissent by Judge Berzon\n\n\n SUMMARY *\n\n\n First Amendment / Death Penalty / 42 U.S.C. § 1983\n\n The panel affirmed in part and reversed in part the\ndistrict court’s dismissal of plaintiffs’ second amended\ncomplaint in an action brought by Arizona death-row\ninmates and the First Amendment Coalition of Arizona,\nchallenging Arizona’s revised execution procedures under\nthe First Amendment.\n\n Plaintiffs challenged three of Arizona’s practices. First,\nthe plaintiffs claimed that Arizona unconstitutionally\nrestricted the ability of execution witnesses to hear the\nsounds of the entire execution process. Second, the plaintiffs\nclaimed that Arizona Department of Corrections (“ADC”)\nofficials violated their First Amendment rights by failing to\ndisclose certain information regarding the source and quality\nof the lethal-injection drugs to be used in the inmates’\nexecution. Third, the plaintiffs claimed that ADC officials\nwere violating the First Amendment by failing to disclose\nthe qualifications of each execution team member who will\ninsert intravenous lines into the inmates.\n\n\n *\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\n FIRST AMENDMENT COALITION V. RYAN 3\n\n Concerning plaintiffs’ claim that ADC officials violated\ntheir First Amendment right of access to governmental\nproceedings, the panel held that the right encompassed a\nright to hear the sounds of executions in their entirety. The\npanel further held that on the facts alleged, Arizona’s\nrestrictions on press and public access to the sounds of\nexecutions impermissibly burdened that right. The panel\nreversed the district court’s decision as to this restriction.\nThe panel also held that because the First Amendment right\nof access to governmental proceedings did not entitle the\nplaintiffs to information regarding execution drugs and\npersonnel as a matter of law, the district court did not abuse\nits discretion by dismissing with prejudice those aspects of\nthe plaintiffs’ claim relating to such information.\n\n Concerning plaintiffs’ claim that Arizona’s restrictions\nviolated the inmates’ First Amendment right of access to the\ncourts, the panel agreed with the district court that the claim\nfailed as a matter of law. The panel held that the district\ncourt did not abuse its discretion by dismissing this claim\nwithout leave to amend.\n\n Judge Berzon concurred in Parts I and II of the majority\nopinion, but dissented as to Part III (First Amendment right\nof access to the courts). Judge Berzon wrote separately to\ncall attention to the inmates’ plausible allegations that\nArizona, through its deliberate concealment of information\nabout its execution process, has violated their First\nAmendment right of access to the courts. Judge Berzon\nwould also hold that Arizona’s approach to devising,\nannouncing, and recording its execution procedures denied\ncondemned inmates their right under the Fourteenth\nAmendment to procedural due process of law.\n\n4 FIRST AMENDMENT COALITION V. RYAN\n\n COUNSEL\n\nCollin P. Wedel (argued), Joshua E. Anderson, Alycia A.\nDegen, and Katherine A. Roberts, Sidley Austin LLP, Los\nAngeles, California; Jon M. Sands, Federal Public Defender;\nDale A. Baich and Jessica L. Felker, Assistant Federal Public\nDefenders; Office of the Federal Public Defender, Phoenix,\nArizona; for Plaintiffs-Appellants.\n\nDominic E. Draye (argued), Solicitor General; Lacey Stover\nGard, Chief Counsel; Mark Brnovich, Attorney General;\nOffice of the Attorney General, Phoenix, Arizona; for\nDefendants-Appellees.\n\n\n OPINION\n\nWATFORD, Circuit Judge:\n\n The plaintiffs in this case are seven Arizona death-row\ninmates and the First Amendment Coalition of Arizona, a\nnon-profit organization that seeks to advance free speech,\naccountable government, and civic participation. They\nbrought this action against officials of the Arizona\nDepartment of Corrections (ADC) to challenge aspects of\nthe Arizona execution process. We are asked to decide\nwhether the plaintiffs have pleaded facts that plausibly state\nclaims that the ADC officials have violated the plaintiffs’\nFirst Amendment rights by: (1) restricting the ability of\nexecution witnesses to hear the sounds of the entire\nexecution process; (2) failing to disclose the source and\nquality of the lethal-injection drugs that will be used in the\ninmates’ executions; and (3) failing to disclose specific\nqualifications of the execution team members who will insert\nintravenous lines into the inmates.\n\n FIRST AMENDMENT COALITION V. RYAN 5\n\n I\n\n Since the Supreme Court upheld the constitutionality of\na three-drug protocol in Baze v. Rees, 553 U.S. 35 (2008),\nthe State of Arizona has executed 14 prisoners by lethal\ninjection. During that time, the State has faced a series of\nlegal challenges to its execution process. A number of those\nchallenges have involved whether its executions expose\nprisoners to needless pain in violation of the Eighth\nAmendment. Although we have rejected the challenge each\ntime, we have expressed serious concerns about the suffering\ncaused by Arizona’s lethal-injection process. For instance,\nwe noted that the execution of Robert Towery was\n“perilously close” to falling outside of the constitutional safe\nharbor created by Baze, given the length of time it took to\nplace Towery’s intravenous lines. Lopez v. Brewer,\n680 F.3d 1068, 1075 (9th Cir. 2012).\n\n Members of our court have noted serious due process\nconcerns with Arizona’s execution procedures as well.\nThese concerns have largely involved the shroud of secrecy\nsurrounding Arizona’s execution proceedings and the\nState’s pattern of deviating from its lethal-injection\nprotocols at the last minute. See Lopez v. Brewer, 680 F.3d\n1084, 1094–95 (9th Cir. 2012) (Reinhardt, J., dissenting\nfrom denial of rehearing en banc). For example, Arizona\ninformed the court that it intended to use a one-drug protocol\ninstead of a three-drug protocol less than 48 hours before\nTowery’s execution. See Towery v. Brewer, 672 F.3d 650,\n652–53 (9th Cir. 2012). Then, when carrying out Towery’s\nexecution, the State restricted public and attorney\nobservation, prohibited Towery from describing the pain he\nexperienced, and limited the notes recorded in the official\nexecution log. See Lopez, 680 F.3d at 1082–83 (Berzon, J.,\nconcurring in part and dissenting in part). These practices\n\n6 FIRST AMENDMENT COALITION V. RYAN\n\nhave constrained the ability of death-row inmates to\nchallenge the constitutionality of Arizona’s execution\nprocess, raising procedural due process concerns. See id. at\n1083–84. This lack of information has also hampered\njudicial review and public evaluation of the process.\n\n In 2014, six death-row inmates filed this 42 U.S.C.\n§ 1983 action against various ADC officials in response to\nthe problems described above. The inmates asserted, among\nother things, that they have a First Amendment right to\ndetailed information regarding the drugs to be used in their\nexecutions and the qualifications of execution team\nmembers. See Wood v. Ryan, 759 F.3d 1076, 1079 (9th Cir.),\nvacated, 573 U.S. 976 (2014). Joseph Wood, one of the\noriginal plaintiffs in this action, filed a motion for a\npreliminary injunction seeking a stay of his impending\nexecution until he obtained the requested information. Our\ncourt concluded that Wood had raised serious questions as\nto whether he was entitled to the requested information\nunder the First Amendment and granted a conditional stay.\nId. at 1080–86, 1088. The Supreme Court summarily\nvacated that decision.\n\n Arizona executed Wood a day after the stay was vacated.\nWood’s execution was botched in several ways. According\nto the allegations in the plaintiffs’ complaint, Wood rose up\nand gasped for air about 12 minutes into his execution, after\nfirst appearing to be sedated. He continued to struggle to\nbreathe until he died, nearly two hours after the drugs were\nfirst administered. During that time, Wood was\nadministered 15 doses of lethal-injection drugs, even though\nArizona’s protocol calls for only two. The execution team\nalso failed to perform consciousness checks before each\ninjection, as they were required to do. According to\n\n FIRST AMENDMENT COALITION V. RYAN 7\n\njournalists who attended the execution, Wood appeared to be\nin agony throughout the process.\n\n After Wood’s execution, the First Amendment Coalition\njoined the inmates in filing the First Amended Complaint.\nThe parties agreed to stay the litigation until the ADC\npublished a set of revised execution procedures. The district\ncourt lifted the stay after the new procedures were published,\nat which point the plaintiffs filed the operative Second\nAmended Complaint.\n\n As relevant to this appeal, the plaintiffs challenge three\nof Arizona’s practices under the First Amendment. We\nexplain these practices in some detail below. The plaintiffs\nalso asserted various Eighth Amendment, due process, and\nequal protection claims. Those claims have been dismissed\nor settled by the parties.\n\n First, the plaintiffs claim that Arizona unconstitutionally\nrestricts the ability of execution witnesses to hear the sounds\nof the entire execution process. Under Arizona’s current\nprocedures, witnesses observe the execution in a designated\nwitness room adjacent to the execution room. Although this\nroom has windows looking into the execution room, those\nwindows are covered by curtains during the preliminary\nsteps of the execution. Witnesses view the prisoner through\nclosed-circuit monitors as he is secured on the table in the\nexecution room, makes his last statement, and has\nintravenous lines inserted. During the initial procedures, the\nwitnesses can listen to the sounds in the execution room\nthrough speakers connected to an overhead microphone.\n\n After the intravenous lines are inserted, execution team\nmembers turn off the closed-circuit monitors and open the\ncurtains to the execution room. They also turn off the\noverhead microphone. At that point, the witnesses can still\n\n8 FIRST AMENDMENT COALITION V. RYAN\n\nview the execution, but they can no longer hear the sounds\nfrom the execution room, other than in brief moments when\nexecution team members turn on the execution-room\nmicrophone to give updates about the prisoner’s level of\nconsciousness. In their complaint, the plaintiffs seek an\ninjunction that would allow witnesses to hear the sounds of\nthe entire execution proceeding, from the time that the\nprisoner is brought into the execution room to the time of\ndeath.\n\n Second, the plaintiffs claim that ADC officials have\nviolated their First Amendment rights by failing to disclose\ncertain information regarding the source and quality of the\nlethal-injection drugs that will be used in the inmates’\nexecutions. Arizona’s procedures require the Department of\nCorrections to disclose some information about the drug\nprotocol to be used in an execution. That information\nincludes the chemical composition and dosages of the drugs,\nas well as the procedures for administering them. The\nprocedures also require officials to ensure that the drugs are\nnot expired and are properly stored. In their complaint, the\nplaintiffs request additional information regarding the\nmanufacturers, sellers, lot numbers, National Drug Codes,\nand expiration dates of the drugs.\n\n Third, the plaintiffs claim that ADC officials are\nviolating the First Amendment by failing to disclose the\nqualifications of each execution team member who will\ninsert intravenous lines into the inmates. Arizona’s\nprocedures require such individuals to be “currently certified\nor licensed within the United States” to place intravenous\nlines. The procedures specify that the individual may be a\nphysician, physician assistant, nurse, emergency medical\ntechnician, paramedic, military corpsman, or any other\ncertified or licensed personnel. The plaintiffs argue that\n\n FIRST AMENDMENT COALITION V. RYAN 9\n\nmore specific information regarding each team member’s\nqualifications is necessary because under the current\nprocedures, an amateur with an online certificate would be\nauthorized to insert the intravenous lines. The plaintiffs thus\nseek documentation from the ADC to establish that the\nexecution team members who will insert intravenous lines\nare qualified to do so.\n\n The plaintiffs advance two theories under the First\nAmendment to challenge the practices described above.\nThey first challenge Arizona’s practices as violating their\nFirst Amendment right of access to governmental\nproceedings. That right guarantees the public and the press\na measure of access to governmental proceedings, to ensure\nthat public discussion of governmental affairs is informed.\nSee Globe Newspaper Co. v. Superior Court, 457 U.S. 596,\n604–05 (1982). Under this theory, the plaintiffs contend,\nADC officials are violating the First Amendment by limiting\naccess to the sounds of the execution process and by\nconcealing information regarding execution drugs and\npersonnel, thereby depriving the public of information\nnecessary to have an informed debate about capital\npunishment in Arizona.\n\n The plaintiffs also assert a separate claim under the First\nAmendment predicated on violation of the inmates’ right of\naccess to the courts. That right guarantees prisoners a\nmeaningful opportunity to bring legal challenges to their\nsentences and the conditions of their confinement. See\nHebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).\nAccording to the complaint, ADC officials are violating the\ninmates’ First Amendment rights by limiting their access to\nimportant information about the execution process, thus\nhindering their ability to challenge the constitutionality of\ntheir executions.\n\n10 FIRST AMENDMENT COALITION V. RYAN\n\n The district court dismissed the plaintiffs’ First\nAmendment claims under Federal Rule of Civil Procedure\n12(b)(6). The court held that the right of access to\ngovernmental proceedings does not encompass either the\nright to hear the sounds of the execution process or the right\nto obtain the requested information regarding execution\ndrugs and personnel. The district court’s decision turned\nlargely on its reading of California First Amendment\nCoalition v. Woodford, 299 F.3d 868 (9th Cir. 2002), which\nheld that the right of access to governmental proceedings\nincludes the right to view executions in their entirety. Id. at\n873–77. The district court construed the holding of that case\nas limited to the right to view executions, not the right to hear\nthe sounds of executions or the right to obtain information\nregarding execution drugs and personnel. The court also\nconcluded that the plaintiffs had not plausibly alleged a\nhistorical tradition or the functional importance of access to\nexecution sounds and information, as required by the\nrelevant First Amendment test.\n\n The district court rejected the plaintiffs’ other First\nAmendment theory as well. The court explained that the\nFirst Amendment right of access to the courts does not\ninclude the right to discover grievances. In the court’s view,\nthe inmates are requesting access to execution sounds and\ninformation about execution drugs and personnel in order to\ndiscover whether they can assert a colorable Eighth\nAmendment claim. The court concluded as a matter of law\nthat the inmates are not entitled to such information under\nthe First Amendment right of access to the courts.\n\n II\n\n We turn first to the claim that ADC officials have\nviolated the plaintiffs’ right of access to governmental\nproceedings.\n\n FIRST AMENDMENT COALITION V. RYAN 11\n\n A\n\n We conclude that the First Amendment right of access to\ngovernmental proceedings encompasses a right to hear the\nsounds of executions in their entirety. We also conclude that\non the facts alleged, Arizona’s restrictions on press and\npublic access to the sounds of executions impermissibly\nburden that right. We thus reverse the district court’s\ndecision as to this restriction.\n\n 1\n\n Our conclusion follows directly from the holding and\nreasoning of Woodford. In that case, we considered a\nCalifornia regulation that prevented witnesses from\nobserving the initial steps of the execution process, during\nwhich the prisoner is brought into the execution chamber,\nsecured to the gurney, and has the intravenous lines inserted.\nSee Woodford, 299 F.3d at 871. We held that the public has\na First Amendment right to view executions in their entirety.\nSee id. at 877. In reaching that conclusion, we applied the\ntwo-part test for analyzing whether a First Amendment right\nof access to governmental proceedings exists: (1) “whether\nthe place and process have historically been open to the press\nand general public,” and (2) “whether public access plays a\nsignificant positive role in the functioning of the particular\nprocess in question.” Press-Enterprise Co. v. Superior\nCourt, 478 U.S. 1, 8 (1986) (Press-Enterprise II). We\ndetermined that public viewing of executions in their entirety\nis rooted in historical tradition and that public observation\nplays a significant role in the functioning of capital\npunishment. See Woodford, 299 F.3d at 875–77. We\ntherefore ruled that the public has a qualified First\nAmendment right to view executions in their entirety.\n\n12 FIRST AMENDMENT COALITION V. RYAN\n\n We first consider here whether the plaintiffs in this case\nhave alleged facts that state a plausible claim that the ADC\nhas violated their First Amendment right to hear the sounds\nof executions in their entirety. As in Woodford, we apply the\nPress-Enterprise II test to determine whether such a First\nAmendment right of access exists.\n\n The historical tradition of public access described in\nWoodford includes the ability to hear the sounds of\nexecutions. In the Second Amended Complaint, the\nplaintiffs cite historical examples in which the public and the\npress were able to attend hangings with no barriers between\nthe prisoners and witnesses. These allegations echo our\nreasoning in Woodford. We explained there that executions\nhave historically been open to the press and the general\npublic. See id. at 875–76. The crowds that gathered to watch\nthose executions could, no doubt, hear the sounds of the\nentire execution process, even if not with perfect clarity.\n\n The defendants argue that, even if that was the case, the\nplaintiffs are seeking an amplified sound broadcast from the\nexecution room, which is not rooted in historical tradition.\nBut that mischaracterizes the nature of the plaintiffs’ request.\nArizona has chosen to have witnesses view the events\nthrough a soundproof window. The plaintiffs are asking for\nthe microphone in the execution room to be left on during\nthe entire execution process not because they want amplified\naudio, but because they want witnesses to be able to hear the\nsounds as they would if they were viewing the execution\ndirectly rather than through a soundproof window.\n\n The plaintiffs have also plausibly alleged that such\naccess would play a significant role in the proper functioning\nof capital punishment. They allege that allowing witnesses\nto hear the sounds of the entire execution process will ensure\ninformed and accurate media coverage of the event, which\n\n FIRST AMENDMENT COALITION V. RYAN 13\n\nin turn will help the public determine whether executions in\nArizona are being carried out in a humane and lawful\nmanner. To support this allegation, they cite historical\nexamples in which media coverage of executions has\nsparked public debate about the appropriate method of\nexecution in Arizona.\n\n The defendants argue that leaving the microphone on\nduring the entire process will provide no additional benefit\nto the functioning of capital punishment in Arizona. They\npoint out that journalists were able to report on the choking\nand coughing sounds that Joseph Wood made during his\nexecution under the State’s current procedures. However,\nalthough reporters could hear those sounds during the brief\nmoments when Wood’s execution team provided updates,\nthey could not hear anything else in the nearly two hours it\ntook for Wood to die. Lifting Arizona’s restriction on the\nwitnesses’ ability to hear would ensure more comprehensive\ncoverage of executions in the State.\n\n As we explained in Woodford, the plaintiffs have alleged\na legally cognizable theory. Execution witnesses need to be\nable to observe and report on the entire process so that the\npublic can determine whether lethal injections are fairly and\nhumanely administered. See id. at 876. Barring witnesses\nfrom hearing sounds after the insertion of intravenous lines\nmeans that the public will not have full information\nregarding the administration of lethal-injection drugs and the\nprisoner’s experience as he dies.\n\n 2\n\n Although we hold that, on the facts alleged, the public\nand the press have a constitutional right to hear the sounds\nof the entire execution process, that does not end our inquiry.\nIn Woodford, after we held that the public has a qualified\n\n14 FIRST AMENDMENT COALITION V. RYAN\n\nFirst Amendment right to view executions, we went on to\nanalyze whether California’s restriction on such observation\nimpermissibly burdened that right. See id. at 885. We\nconcluded that it did.\n\n First, we determined that a deferential standard of review\nis appropriate in this context because executions take place\ninside prisons, and corrections officials must have broad\ndiscretion to carry out the complex task of prison\nadministration. See id. at 877–79. We thus analyzed\nwhether California’s regulation was “reasonably related to\nlegitimate penological objectives, or whether it represent[ed]\nan exaggerated response to those concerns.” Id. at 878\n(quoting Turner v. Safley, 482 U.S. 78, 87 (1987)). We\nexplained that there needed to be a “closer fit” between the\nregulation and any legitimate penological objectives because\nthe California regulation at issue did not leave room for case-\nby-case discretion. See id. at 879. The restriction\ncategorically banned witnesses from viewing the initial\nprocedures of executions, regardless of whether there were\nany specific security concerns.\n\n We then considered the four factors relevant to the\ninquiry: (1) whether there is a “valid, rational connection\nbetween the prison regulation and the legitimate\ngovernmental interest put forward to justify it,” (2) “whether\nthere are alternative means of exercising the right that\nremain open to prison inmates,” (3) what “impact\naccommodation of the asserted constitutional right will have\non guards and other inmates, and on the allocation of prison\nresources generally,” and (4) whether there are “obvious,\neasy alternatives . . . that fully accommodate[] the prisoner’s\nrights at de minimis cost to valid penological interests.”\nTurner, 482 U.S. at 89–91 (internal quotation marks\nomitted). We concluded that the California viewing\n\n FIRST AMENDMENT COALITION V. RYAN 15\n\nrestriction was not reasonably related to a legitimate\npenological interest and thus was unconstitutional. See\nWoodford, 299 F.3d at 879–85.\n\n The same deferential standard of review applies here as\nwell. As in Woodford, we are dealing with a regulation\nregarding executions that will take place inside a prison. See\nid. at 877–79. We consider the four relevant factors to\ndetermine whether Arizona’s restrictions on access to the\nsounds of executions are reasonably related to legitimate\npenological objectives. As Woodford instructed, we require\na “closer fit” between the restriction and any legitimate\npenological interests because the regulation does not allow\nfor case-by-case discretion. See id. at 879. That is, Arizona\nimposes a categorical ban on hearing the sounds of\nexecutions after the intravenous lines are inserted, regardless\nof whether there are any specific security risks.\n\n The plaintiffs have alleged facts that state a plausible\nclaim that Arizona has unconstitutionally restricted the\nability of witnesses to hear the sounds of executions, even\nunder the deferential standard of review applied in\nWoodford. The defendants attempt to justify the restrictions\nby arguing that they have a legitimate penological interest in\nensuring that execution team members are not publicly\nidentified or attacked. But, according to the factual\nallegations in the plaintiffs’ complaint, witnesses can hear\nsounds from the execution room as the execution team\nbrings the prisoner into the room, secures him to the table,\nand inserts the intravenous lines. Thus, to the extent that\nexecution team members could be identified by the sound of\ntheir voices, witnesses can already hear their voices during\nthe initial stages of the execution. The defendants also argue\nthat allowing witnesses to hear the sounds of the entire\nexecution process could increase the risk of litigation and\n\n16 FIRST AMENDMENT COALITION V. RYAN\n\ncause execution team members to second-guess their\nactions. We reject this argument because Arizona does not\nhave a legitimate penological interest in hampering efforts\nto ensure the constitutionality of its executions. The\nplaintiffs have thus plausibly alleged that there is no valid,\nrational connection between the regulation and cognizable\ngovernmental interests. See Turner, 482 U.S. at 89–90.\n\n The plaintiffs have also plausibly alleged that, with\nArizona’s restrictions in place, there are no alternative\nmeans for the public to exercise the right to hear the sounds\nof executions in their entirety. See id. at 90. As we\nexplained in Woodford, the public has a right to independent\neyewitness accounts of the entire execution process. See\nWoodford, 299 F.3d at 883–84. Reports of executions by the\nsame prison officials who carry them out are not adequate\nsubstitutes. See id. at 883.\n\n Finally, the plaintiffs have plausibly alleged that there is\nan available, low-cost alternative to fully accommodate the\nFirst Amendment right: leaving the microphone in the\nexecution room on throughout the entire process. See\nTurner, 482 U.S. at 90–91. This accommodation would not\nhave a significant impact on guards, other inmates, or the\nallocation of prison resources. See id. at 90. According to\nthe plaintiffs’ allegations and Arizona’s own records, a\nmicrophone is already set up to carry sounds from the\nexecution room to the witness room during the initial stages\nof the execution process. Leaving the microphone on for the\nrest of the process would involve at most only a de minimis\ncost.\n\n B\n\n The plaintiffs also assert that the First Amendment right\nof access to governmental proceedings entitles them to\n\n FIRST AMENDMENT COALITION V. RYAN 17\n\ninformation regarding the manufacturers, sellers, lot\nnumbers, National Drug Codes, and expiration dates of\nlethal-injection drugs, as well as documentation regarding\nthe qualifications of certain execution team members. We\nagree with the district court that neither the public nor the\npress has a First Amendment right of access to this\ninformation.\n\n As the Supreme Court originally conceptualized it, the\nFirst Amendment right of access to governmental\nproceedings refers to the right of the public to attend and\nobserve those proceedings. In the initial cases recognizing\nthe right, the Court held that the public has the right to attend\ncriminal trials, see Globe Newspaper Co., 457 U.S. at 606;\nRichmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580\n(1980) (plurality opinion), the jury-selection process, see\nPress-Enterprise Co. v. Superior Court, 464 U.S. 501, 512\n(1984) (Press-Enterprise I), and preliminary hearings, see\nPress-Enterprise II, 478 U.S. at 13. In situations in which\nother interests justify the closure of a proceeding, the Court\nheld that the public has a right to access a transcript of the\nproceeding within a reasonable time. See Press-Enterprise\nII, 478 U.S. at 13; Press-Enterprise I, 464 U.S. at 512. Our\ncourt has since extended the right of access to various\ndocuments filed in criminal proceedings. For example, we\nhave held that the public has the right to access plea\nagreements, see Oregonian Publishing Co. v. United States\nDistrict Court, 920 F.2d 1462, 1465–66 (9th Cir. 1990),\ndocuments filed in pretrial proceedings, see Associated\nPress v. United States District Court, 705 F.2d 1143, 1145\n(9th Cir. 1983), and documents filed in post-conviction\nproceedings, see CBS, Inc. v. United States District Court,\n765 F.2d 823, 825 (9th Cir. 1985).\n\n18 FIRST AMENDMENT COALITION V. RYAN\n\n The plaintiffs analogize information regarding execution\ndrugs and personnel to the documents described above.\nThey argue that the information is just as important to\nunderstanding executions as the documents at issue in our\nprior cases are to understanding criminal proceedings, and\nthat the public therefore has a right of access to the\ninformation sought here. The plaintiffs correctly point out\nthat we held that such a right likely exists in Wood, 759 F.3d\nat 1082–86, but that decision was summarily vacated by the\nSupreme Court.\n\n We conclude that the requested information differs from\nthe requested documents in precedential cases in material\nways and that the public does not have a right of access to\nthe information at issue here. As explained above, the\nSupreme Court has held that the public has a right of access\nto transcripts of various criminal proceedings. See, e.g.,\nPress-Enterprise II, 478 U.S. at 13 (preliminary hearing);\nPress-Enterprise I, 464 U.S. at 512 (jury-selection process).\nInformation regarding execution drugs and personnel bears\nno resemblance to a transcript. It does not provide a\ndescriptive account of the execution process, as a transcript\nwould. The reason for providing the public with access to a\ntranscript also does not apply here. The Supreme Court has\nexplained that a transcript may serve as a substitute for\nholding an open governmental proceeding when other\ninterests justify the closure of that proceeding. See Press-\nEnterprise I, 464 U.S. at 512. There is no need for a\ntranscript in this context, since the public already has a right\nto attend and observe executions. See Woodford, 299 F.3d\nat 877.\n\n Information regarding execution drugs and personnel\nalso differs from other documents to which the public has a\nright of access. We have held that the public has the right to\n\n FIRST AMENDMENT COALITION V. RYAN 19\n\naccess documents filed in certain judicial proceedings. See,\ne.g., Oregonian Publishing Co., 920 F.2d at 1465–66 (plea\nagreement and related documents); CBS, Inc., 765 F.2d at\n825 (documents filed in post-conviction proceedings);\nAssociated Press, 705 F.2d at 1145 (documents filed in\npretrial proceedings). Those documents are part of the\nofficial judicial record. See CBS, Inc., 765 F.2d at 826. We\nhave never held that the right of access extends to documents\nbeyond those in the record just because they may shed light\non a criminal proceeding. For example, we have never held\nthat the First Amendment gives the public a right to access\njudicial conference notes or to all documents in the\nprosecutor’s possession, and the Supreme Court has\nsuggested that the First Amendment does not provide for\nsuch a right. See Pell v. Procunier, 417 U.S. 817, 833–34\n(1974).\n\n Unlike the documents to which the public has a right of\naccess, the requested information is not part of any official\nrecord of the execution proceeding. It is simply information\nin the government’s possession that would enhance the\nunderstanding of executions. But, as the Supreme Court has\nstated, the First Amendment does not “mandate[] a right of\naccess to government information or sources of information\nwithin the government’s control.” Houchins v. KQED, Inc.,\n438 U.S. 1, 15 (1978) (plurality opinion).\n\n We also reject the plaintiffs’ argument that the holding\nof Woodford—that the public has a right to view executions\nin their entirety—directly resolves this issue. According to\nthe plaintiffs, in analogous medical settings, witnesses\nwould be able to view drug labels and the nametags of\nmedical personnel, which would allow them to observe\ninformation regarding the source of drugs and the\nqualifications of medical personnel. The plaintiffs argue that\n\n20 FIRST AMENDMENT COALITION V. RYAN\n\nknowing the source of the drugs would, in turn, provide\ninformation about the quality of the drugs. The plaintiffs\nthus contend that the right to view executions in their entirety\nincludes the right to access the requested information\nregarding execution drugs and personnel.\n\n Woodford’s holding does not extend that far. There, we\nheld that the public and the press have the right to view\nexecutions in their entirety, “including those ‘initial\nprocedures’ that are inextricably intertwined with the\nprocess of putting the condemned inmate to death.”\nWoodford, 299 F.3d at 877. We did not hold that there is a\nFirst Amendment right to examine executions in minute\ndetail, such that witnesses could see the drug labels and the\nnametags of execution team members. Nor did we hold that\nthe public is entitled to all information that is “inextricably\nintertwined” with executions. Woodford did not change the\ndefault rule that the right of access “does not extend to every\npiece of information that conceivably relates to a\ngovernmental proceeding, even if the governmental\nproceeding is itself open to the public.” Wood, 759 F.3d at\n1092 (Bybee, J., dissenting).\n\n Other courts have reached the same conclusion. The\nSixth Circuit concluded that the Press-Enterprise II test does\nnot apply in this context, and held that the public does not\nhave a First Amendment right of access to information\nregarding the identities of execution team members or the\nidentities of entities that transport, manufacture, compound,\nor supply lethal-injection drugs. See Phillips v. DeWine,\n841 F.3d 405, 417–20 (6th Cir. 2016). Similarly, the Eighth\nCircuit has held that the public does not have a First\nAmendment right to know the identities of the entities that\nsupply and compound lethal-injection drugs. See Zink v.\nLombardi, 783 F.3d 1089, 1111–13 (8th Cir. 2015). And the\n\n FIRST AMENDMENT COALITION V. RYAN 21\n\nEleventh Circuit has held that the public does not have a\nright to know the qualifications of execution team members\nor the source of lethal-injection drugs. See Wellons v.\nCommissioner, 754 F.3d 1260, 1266–67 (11th Cir. 2014).\n\n Given Arizona’s checkered past with executions, we are\ntroubled by the lack of detailed information regarding\nexecution drugs and personnel. Such information would\nundoubtedly aid the public and death-row inmates in\nmonitoring the constitutionality of Arizona’s execution\nproceedings. However, as the Supreme Court has held, the\nFirst Amendment does not mandate the disclosure of “all the\ninformation provided by [freedom of information] laws.”\nMcBurney v. Young, 569 U.S. 221, 232 (2013). Thus,\nalthough the inmates may be able to assert a procedural due\nprocess right to obtain the information they seek, see Lopez,\n680 F.3d at 1083–84 (Berzon, J., concurring in part and\ndissenting in part), neither the inmates nor the First\nAmendment Coalition possesses such a right under the First\nAmendment.\n\n Because the First Amendment right of access to\ngovernmental proceedings does not entitle the plaintiffs to\ninformation regarding execution drugs and personnel as a\nmatter of law, the district court did not abuse its discretion\nby dismissing with prejudice those aspects of the plaintiffs’\nclaim relating to such information.\n\n III\n\n We turn next to the plaintiffs’ claim that Arizona’s\nrestrictions violate the inmates’ First Amendment right of\naccess to the courts. We agree with the district court that this\nclaim fails as a matter of law.\n\n22 FIRST AMENDMENT COALITION V. RYAN\n\n We have held that there are two types of claims that can\nbe raised in this context. See Silva v. Di Vittorio, 658 F.3d\n1090, 1102–04 (9th Cir. 2011), overruled on other grounds\nby Coleman v. Tollefson, 135 S. Ct. 1759 (2015). The first\ncategory of claims involves the denial of adequate law\nlibraries and other legal assistance to prisoners, which\nprevents them from challenging their sentences and the\nconditions of their confinement. See Hebbe, 627 F.3d\nat 342–43. The second category of claims involves active\ninterference with a prisoner’s right to litigate, such as seizing\nand withholding the prisoner’s legal files. See Silva,\n658 F.3d at 1102–04. Neither of those rights is implicated\nhere, for the plaintiffs do not contend that Arizona officials\nhave limited the inmates’ ability to litigate in any way.\n\n The Supreme Court has explained that the First\nAmendment right of access to the courts does not include the\nright of prisoners to “discover grievances[] and to litigate\neffectively once in court.” Lewis v. Casey, 518 U.S. 343,\n354 (1996) (emphasis omitted). That is what the inmates\nseek here. According to the Second Amended Complaint,\nthe inmates are seeking access to execution sounds and\ninformation regarding execution drugs and personnel in\norder to discover whether they have a colorable claim that\ntheir executions will be carried out in violation of the Eighth\nand Fourteenth Amendments. The First Amendment right\nof access to the courts does not entitle the inmates to such\ninformation. See Phillips, 841 F.3d at 420; Zink, 783 F.3d\nat 1108; Wellons, 754 F.3d at 1267.\n\n Because the inmates’ right-of-access-to-the-courts claim\nfails as a matter of law, the district court did not abuse its\ndiscretion by dismissing this claim without leave to amend.\n\n AFFIRMED in part, REVERSED in part, and\nREMANDED.\n\n FIRST AMENDMENT COALITION V. RYAN 23\n\n The parties shall bear their own costs.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: First Amendment Coalition v. Charles Ryan\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nFIRST AMENDMENT COALITION OF No. 17-16330\\nARIZONA, INC.; CHARLES MICHAEL\\nHEDLUND; GRAHAM S. HENRY; D.C. No.\\nDAVID GULBRANDSON; ROBERT 2:14-cv-01447-\\nALLEN POYSON; TODD SMITH; NVW\\nELDON M. SCHURZ; ROGER SCOTT,\\n Plaintiffs-Appellants,\\n OPINION\\n v.\\n\\nCHARLES L. RYAN, Director of the\\nArizona Department of Corrections;\\nUNKNOWN PARTIES, named as: John\\nDoes - unknown ADC Personnel, in\\ntheir official capacities as\\nEmployees, Contractors, and/or\\nAgents of the Arizona Department of\\nCorrections; GREG FIZER, Warden,\\nASPC-Florence,\\n Defendants-Appellees.\\n\\n Appeal from the United States District Court\\n for the District of Arizona\\n Neil V. Wake, District Judge, Presiding\\n\\n Argued and Submitted September 12, 2018\\n San Francisco, California\\n\\n Filed September 17, 2019\\n\\n2 FIRST AMENDMENT COALITION V. RYAN\\n\\n Before: Marsha S. Berzon, Johnnie B. Rawlinson,\\n and Paul J. Watford, Circuit Judges.\\n\\n Opinion by Judge Watford;\\n Partial Concurrence and Partial Dissent by Judge Berzon\\n\\n\\n SUMMARY *\\n\\n\\n First Amendment / Death Penalty / 42 U.S.C. § 1983\\n\\n The panel affirmed in part and reversed in part the\\ndistrict court’s dismissal of plaintiffs’ second amended\\ncomplaint in an action brought by Arizona death-row\\ninmates and the First Amendment Coalition of Arizona,\\nchallenging Arizona’s revised execution procedures under\\nthe First Amendment.\\n\\n Plaintiffs challenged three of Arizona’s practices. First,\\nthe plaintiffs claimed that Arizona unconstitutionally\\nrestricted the ability of execution witnesses to hear the\\nsounds of the entire execution process. Second, the plaintiffs\\nclaimed that Arizona Department of Corrections (“ADC”)\\nofficials violated their First Amendment rights by failing to\\ndisclose certain information regarding the source and quality\\nof the lethal-injection drugs to be used in the inmates’\\nexecution. Third, the plaintiffs claimed that ADC officials\\nwere violating the First Amendment by failing to disclose\\nthe qualifications of each execution team member who will\\ninsert intravenous lines into the inmates.\\n\\n\\n *\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\n FIRST AMENDMENT COALITION V. RYAN 3\\n\\n Concerning plaintiffs’ claim that ADC officials violated\\ntheir First Amendment right of access to governmental\\nproceedings, the panel held that the right encompassed a\\nright to hear the sounds of executions in their entirety. The\\npanel further held that on the facts alleged, Arizona’s\\nrestrictions on press and public access to the sounds of\\nexecutions impermissibly burdened that right. The panel\\nreversed the district court’s decision as to this restriction.\\nThe panel also held that because the First Amendment right\\nof access to governmental proceedings did not entitle the\\nplaintiffs to information regarding execution drugs and\\npersonnel as a matter of law, the district court did not abuse\\nits discretion by dismissing with prejudice those aspects of\\nthe plaintiffs’ claim relating to such information.\\n\\n Concerning plaintiffs’ claim that Arizona’s restrictions\\nviolated the inmates’ First Amendment right of access to the\\ncourts, the panel agreed with the district court that the claim\\nfailed as a matter of law. The panel held that the district\\ncourt did not abuse its discretion by dismissing this claim\\nwithout leave to amend.\\n\\n Judge Berzon concurred in Parts I and II of the majority\\nopinion, but dissented as to Part III (First Amendment right\\nof access to the courts). Judge Berzon wrote separately to\\ncall attention to the inmates’ plausible allegations that\\nArizona, through its deliberate concealment of information\\nabout its execution process, has violated their First\\nAmendment right of access to the courts. Judge Berzon\\nwould also hold that Arizona’s approach to devising,\\nannouncing, and recording its execution procedures denied\\ncondemned inmates their right under the Fourteenth\\nAmendment to procedural due process of law.\\n\\n4 FIRST AMENDMENT COALITION V. RYAN\\n\\n COUNSEL\\n\\nCollin P. Wedel (argued), Joshua E. Anderson, Alycia A.\\nDegen, and Katherine A. Roberts, Sidley Austin LLP, Los\\nAngeles, California; Jon M. Sands, Federal Public Defender;\\nDale A. Baich and Jessica L. Felker, Assistant Federal Public\\nDefenders; Office of the Federal Public Defender, Phoenix,\\nArizona; for Plaintiffs-Appellants.\\n\\nDominic E. Draye (argued), Solicitor General; Lacey Stover\\nGard, Chief Counsel; Mark Brnovich, Attorney General;\\nOffice of the Attorney General, Phoenix, Arizona; for\\nDefendants-Appellees.\\n\\n\\n OPINION\\n\\nWATFORD, Circuit Judge:\\n\\n The plaintiffs in this case are seven Arizona death-row\\ninmates and the First Amendment Coalition of Arizona, a\\nnon-profit organization that seeks to advance free speech,\\naccountable government, and civic participation. They\\nbrought this action against officials of the Arizona\\nDepartment of Corrections (ADC) to challenge aspects of\\nthe Arizona execution process. We are asked to decide\\nwhether the plaintiffs have pleaded facts that plausibly state\\nclaims that the ADC officials have violated the plaintiffs’\\nFirst Amendment rights by: (1) restricting the ability of\\nexecution witnesses to hear the sounds of the entire\\nexecution process; (2) failing to disclose the source and\\nquality of the lethal-injection drugs that will be used in the\\ninmates’ executions; and (3) failing to disclose specific\\nqualifications of the execution team members who will insert\\nintravenous lines into the inmates.\\n\\n FIRST AMENDMENT COALITION V. RYAN 5\\n\\n I\\n\\n Since the Supreme Court upheld the constitutionality of\\na three-drug protocol in Baze v. Rees, 553 U.S. 35 (2008),\\nthe State of Arizona has executed 14 prisoners by lethal\\ninjection. During that time, the State has faced a series of\\nlegal challenges to its execution process. A number of those\\nchallenges have involved whether its executions expose\\nprisoners to needless pain in violation of the Eighth\\nAmendment. Although we have rejected the challenge each\\ntime, we have expressed serious concerns about the suffering\\ncaused by Arizona’s lethal-injection process. For instance,\\nwe noted that the execution of Robert Towery was\\n“perilously close” to falling outside of the constitutional safe\\nharbor created by Baze, given the length of time it took to\\nplace Towery’s intravenous lines. Lopez v. Brewer,\\n680 F.3d 1068, 1075 (9th Cir. 2012).\\n\\n Members of our court have noted serious due process\\nconcerns with Arizona’s execution procedures as well.\\nThese concerns have largely involved the shroud of secrecy\\nsurrounding Arizona’s execution proceedings and the\\nState’s pattern of deviating from its lethal-injection\\nprotocols at the last minute. See Lopez v. Brewer, 680 F.3d\\n1084, 1094–95 (9th Cir. 2012) (Reinhardt, J., dissenting\\nfrom denial of rehearing en banc). For example, Arizona\\ninformed the court that it intended to use a one-drug protocol\\ninstead of a three-drug protocol less than 48 hours before\\nTowery’s execution. See Towery v. Brewer, 672 F.3d 650,\\n652–53 (9th Cir. 2012). Then, when carrying out Towery’s\\nexecution, the State restricted public and attorney\\nobservation, prohibited Towery from describing the pain he\\nexperienced, and limited the notes recorded in the official\\nexecution log. See Lopez, 680 F.3d at 1082–83 (Berzon, J.,\\nconcurring in part and dissenting in part). These practices\\n\\n6 FIRST AMENDMENT COALITION V. RYAN\\n\\nhave constrained the ability of death-row inmates to\\nchallenge the constitutionality of Arizona’s execution\\nprocess, raising procedural due process concerns. See id. at\\n1083–84. This lack of information has also hampered\\njudicial review and public evaluation of the process.\\n\\n In 2014, six death-row inmates filed this 42 U.S.C.\\n§ 1983 action against various ADC officials in response to\\nthe problems described above. The inmates asserted, among\\nother things, that they have a First Amendment right to\\ndetailed information regarding the drugs to be used in their\\nexecutions and the qualifications of execution team\\nmembers. See Wood v. Ryan, 759 F.3d 1076, 1079 (9th Cir.),\\nvacated, 573 U.S. 976 (2014). Joseph Wood, one of the\\noriginal plaintiffs in this action, filed a motion for a\\npreliminary injunction seeking a stay of his impending\\nexecution until he obtained the requested information. Our\\ncourt concluded that Wood had raised serious questions as\\nto whether he was entitled to the requested information\\nunder the First Amendment and granted a conditional stay.\\nId. at 1080–86, 1088. The Supreme Court summarily\\nvacated that decision.\\n\\n Arizona executed Wood a day after the stay was vacated.\\nWood’s execution was botched in several ways. According\\nto the allegations in the plaintiffs’ complaint, Wood rose up\\nand gasped for air about 12 minutes into his execution, after\\nfirst appearing to be sedated. He continued to struggle to\\nbreathe until he died, nearly two hours after the drugs were\\nfirst administered. During that time, Wood was\\nadministered 15 doses of lethal-injection drugs, even though\\nArizona’s protocol calls for only two. The execution team\\nalso failed to perform consciousness checks before each\\ninjection, as they were required to do. According to\\n\\n FIRST AMENDMENT COALITION V. RYAN 7\\n\\njournalists who attended the execution, Wood appeared to be\\nin agony throughout the process.\\n\\n After Wood’s execution, the First Amendment Coalition\\njoined the inmates in filing the First Amended Complaint.\\nThe parties agreed to stay the litigation until the ADC\\npublished a set of revised execution procedures. The district\\ncourt lifted the stay after the new procedures were published,\\nat which point the plaintiffs filed the operative Second\\nAmended Complaint.\\n\\n As relevant to this appeal, the plaintiffs challenge three\\nof Arizona’s practices under the First Amendment. We\\nexplain these practices in some detail below. The plaintiffs\\nalso asserted various Eighth Amendment, due process, and\\nequal protection claims. Those claims have been dismissed\\nor settled by the parties.\\n\\n First, the plaintiffs claim that Arizona unconstitutionally\\nrestricts the ability of execution witnesses to hear the sounds\\nof the entire execution process. Under Arizona’s current\\nprocedures, witnesses observe the execution in a designated\\nwitness room adjacent to the execution room. Although this\\nroom has windows looking into the execution room, those\\nwindows are covered by curtains during the preliminary\\nsteps of the execution. Witnesses view the prisoner through\\nclosed-circuit monitors as he is secured on the table in the\\nexecution room, makes his last statement, and has\\nintravenous lines inserted. During the initial procedures, the\\nwitnesses can listen to the sounds in the execution room\\nthrough speakers connected to an overhead microphone.\\n\\n After the intravenous lines are inserted, execution team\\nmembers turn off the closed-circuit monitors and open the\\ncurtains to the execution room. They also turn off the\\noverhead microphone. At that point, the witnesses can still\\n\\n8 FIRST AMENDMENT COALITION V. RYAN\\n\\nview the execution, but they can no longer hear the sounds\\nfrom the execution room, other than in brief moments when\\nexecution team members turn on the execution-room\\nmicrophone to give updates about the prisoner’s level of\\nconsciousness. In their complaint, the plaintiffs seek an\\ninjunction that would allow witnesses to hear the sounds of\\nthe entire execution proceeding, from the time that the\\nprisoner is brought into the execution room to the time of\\ndeath.\\n\\n Second, the plaintiffs claim that ADC officials have\\nviolated their First Amendment rights by failing to disclose\\ncertain information regarding the source and quality of the\\nlethal-injection drugs that will be used in the inmates’\\nexecutions. Arizona’s procedures require the Department of\\nCorrections to disclose some information about the drug\\nprotocol to be used in an execution. That information\\nincludes the chemical composition and dosages of the drugs,\\nas well as the procedures for administering them. The\\nprocedures also require officials to ensure that the drugs are\\nnot expired and are properly stored. In their complaint, the\\nplaintiffs request additional information regarding the\\nmanufacturers, sellers, lot numbers, National Drug Codes,\\nand expiration dates of the drugs.\\n\\n Third, the plaintiffs claim that ADC officials are\\nviolating the First Amendment by failing to disclose the\\nqualifications of each execution team member who will\\ninsert intravenous lines into the inmates. Arizona’s\\nprocedures require such individuals to be “currently certified\\nor licensed within the United States” to place intravenous\\nlines. The procedures specify that the individual may be a\\nphysician, physician assistant, nurse, emergency medical\\ntechnician, paramedic, military corpsman, or any other\\ncertified or licensed personnel. The plaintiffs argue that\\n\\n FIRST AMENDMENT COALITION V. RYAN 9\\n\\nmore specific information regarding each team member’s\\nqualifications is necessary because under the current\\nprocedures, an amateur with an online certificate would be\\nauthorized to insert the intravenous lines. The plaintiffs thus\\nseek documentation from the ADC to establish that the\\nexecution team members who will insert intravenous lines\\nare qualified to do so.\\n\\n The plaintiffs advance two theories under the First\\nAmendment to challenge the practices described above.\\nThey first challenge Arizona’s practices as violating their\\nFirst Amendment right of access to governmental\\nproceedings. That right guarantees the public and the press\\na measure of access to governmental proceedings, to ensure\\nthat public discussion of governmental affairs is informed.\\nSee Globe Newspaper Co. v. Superior Court, 457 U.S. 596,\\n604–05 (1982). Under this theory, the plaintiffs contend,\\nADC officials are violating the First Amendment by limiting\\naccess to the sounds of the execution process and by\\nconcealing information regarding execution drugs and\\npersonnel, thereby depriving the public of information\\nnecessary to have an informed debate about capital\\npunishment in Arizona.\\n\\n The plaintiffs also assert a separate claim under the First\\nAmendment predicated on violation of the inmates’ right of\\naccess to the courts. That right guarantees prisoners a\\nmeaningful opportunity to bring legal challenges to their\\nsentences and the conditions of their confinement. See\\nHebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).\\nAccording to the complaint, ADC officials are violating the\\ninmates’ First Amendment rights by limiting their access to\\nimportant information about the execution process, thus\\nhindering their ability to challenge the constitutionality of\\ntheir executions.\\n\\n10 FIRST AMENDMENT COALITION V. RYAN\\n\\n The district court dismissed the plaintiffs’ First\\nAmendment claims under Federal Rule of Civil Procedure\\n12(b)(6). The court held that the right of access to\\ngovernmental proceedings does not encompass either the\\nright to hear the sounds of the execution process or the right\\nto obtain the requested information regarding execution\\ndrugs and personnel. The district court’s decision turned\\nlargely on its reading of California First Amendment\\nCoalition v. Woodford, 299 F.3d 868 (9th Cir. 2002), which\\nheld that the right of access to governmental proceedings\\nincludes the right to view executions in their entirety. Id. at\\n873–77. The district court construed the holding of that case\\nas limited to the right to view executions, not the right to hear\\nthe sounds of executions or the right to obtain information\\nregarding execution drugs and personnel. The court also\\nconcluded that the plaintiffs had not plausibly alleged a\\nhistorical tradition or the functional importance of access to\\nexecution sounds and information, as required by the\\nrelevant First Amendment test.\\n\\n The district court rejected the plaintiffs’ other First\\nAmendment theory as well. The court explained that the\\nFirst Amendment right of access to the courts does not\\ninclude the right to discover grievances. In the court’s view,\\nthe inmates are requesting access to execution sounds and\\ninformation about execution drugs and personnel in order to\\ndiscover whether they can assert a colorable Eighth\\nAmendment claim. The court concluded as a matter of law\\nthat the inmates are not entitled to such information under\\nthe First Amendment right of access to the courts.\\n\\n II\\n\\n We turn first to the claim that ADC officials have\\nviolated the plaintiffs’ right of access to governmental\\nproceedings.\\n\\n FIRST AMENDMENT COALITION V. RYAN 11\\n\\n A\\n\\n We conclude that the First Amendment right of access to\\ngovernmental proceedings encompasses a right to hear the\\nsounds of executions in their entirety. We also conclude that\\non the facts alleged, Arizona’s restrictions on press and\\npublic access to the sounds of executions impermissibly\\nburden that right. We thus reverse the district court’s\\ndecision as to this restriction.\\n\\n 1\\n\\n Our conclusion follows directly from the holding and\\nreasoning of Woodford. In that case, we considered a\\nCalifornia regulation that prevented witnesses from\\nobserving the initial steps of the execution process, during\\nwhich the prisoner is brought into the execution chamber,\\nsecured to the gurney, and has the intravenous lines inserted.\\nSee Woodford, 299 F.3d at 871. We held that the public has\\na First Amendment right to view executions in their entirety.\\nSee id. at 877. In reaching that conclusion, we applied the\\ntwo-part test for analyzing whether a First Amendment right\\nof access to governmental proceedings exists: (1) “whether\\nthe place and process have historically been open to the press\\nand general public,” and (2) “whether public access plays a\\nsignificant positive role in the functioning of the particular\\nprocess in question.” Press-Enterprise Co. v. Superior\\nCourt, 478 U.S. 1, 8 (1986) (Press-Enterprise II). We\\ndetermined that public viewing of executions in their entirety\\nis rooted in historical tradition and that public observation\\nplays a significant role in the functioning of capital\\npunishment. See Woodford, 299 F.3d at 875–77. We\\ntherefore ruled that the public has a qualified First\\nAmendment right to view executions in their entirety.\\n\\n12 FIRST AMENDMENT COALITION V. RYAN\\n\\n We first consider here whether the plaintiffs in this case\\nhave alleged facts that state a plausible claim that the ADC\\nhas violated their First Amendment right to hear the sounds\\nof executions in their entirety. As in Woodford, we apply the\\nPress-Enterprise II test to determine whether such a First\\nAmendment right of access exists.\\n\\n The historical tradition of public access described in\\nWoodford includes the ability to hear the sounds of\\nexecutions. In the Second Amended Complaint, the\\nplaintiffs cite historical examples in which the public and the\\npress were able to attend hangings with no barriers between\\nthe prisoners and witnesses. These allegations echo our\\nreasoning in Woodford. We explained there that executions\\nhave historically been open to the press and the general\\npublic. See id. at 875–76. The crowds that gathered to watch\\nthose executions could, no doubt, hear the sounds of the\\nentire execution process, even if not with perfect clarity.\\n\\n The defendants argue that, even if that was the case, the\\nplaintiffs are seeking an amplified sound broadcast from the\\nexecution room, which is not rooted in historical tradition.\\nBut that mischaracterizes the nature of the plaintiffs’ request.\\nArizona has chosen to have witnesses view the events\\nthrough a soundproof window. The plaintiffs are asking for\\nthe microphone in the execution room to be left on during\\nthe entire execution process not because they want amplified\\naudio, but because they want witnesses to be able to hear the\\nsounds as they would if they were viewing the execution\\ndirectly rather than through a soundproof window.\\n\\n The plaintiffs have also plausibly alleged that such\\naccess would play a significant role in the proper functioning\\nof capital punishment. They allege that allowing witnesses\\nto hear the sounds of the entire execution process will ensure\\ninformed and accurate media coverage of the event, which\\n\\n FIRST AMENDMENT COALITION V. RYAN 13\\n\\nin turn will help the public determine whether executions in\\nArizona are being carried out in a humane and lawful\\nmanner. To support this allegation, they cite historical\\nexamples in which media coverage of executions has\\nsparked public debate about the appropriate method of\\nexecution in Arizona.\\n\\n The defendants argue that leaving the microphone on\\nduring the entire process will provide no additional benefit\\nto the functioning of capital punishment in Arizona. They\\npoint out that journalists were able to report on the choking\\nand coughing sounds that Joseph Wood made during his\\nexecution under the State’s current procedures. However,\\nalthough reporters could hear those sounds during the brief\\nmoments when Wood’s execution team provided updates,\\nthey could not hear anything else in the nearly two hours it\\ntook for Wood to die. Lifting Arizona’s restriction on the\\nwitnesses’ ability to hear would ensure more comprehensive\\ncoverage of executions in the State.\\n\\n As we explained in Woodford, the plaintiffs have alleged\\na legally cognizable theory. Execution witnesses need to be\\nable to observe and report on the entire process so that the\\npublic can determine whether lethal injections are fairly and\\nhumanely administered. See id. at 876. Barring witnesses\\nfrom hearing sounds after the insertion of intravenous lines\\nmeans that the public will not have full information\\nregarding the administration of lethal-injection drugs and the\\nprisoner’s experience as he dies.\\n\\n 2\\n\\n Although we hold that, on the facts alleged, the public\\nand the press have a constitutional right to hear the sounds\\nof the entire execution process, that does not end our inquiry.\\nIn Woodford, after we held that the public has a qualified\\n\\n14 FIRST AMENDMENT COALITION V. RYAN\\n\\nFirst Amendment right to view executions, we went on to\\nanalyze whether California’s restriction on such observation\\nimpermissibly burdened that right. See id. at 885. We\\nconcluded that it did.\\n\\n First, we determined that a deferential standard of review\\nis appropriate in this context because executions take place\\ninside prisons, and corrections officials must have broad\\ndiscretion to carry out the complex task of prison\\nadministration. See id. at 877–79. We thus analyzed\\nwhether California’s regulation was “reasonably related to\\nlegitimate penological objectives, or whether it represent[ed]\\nan exaggerated response to those concerns.” Id. at 878\\n(quoting Turner v. Safley, 482 U.S. 78, 87 (1987)). We\\nexplained that there needed to be a “closer fit” between the\\nregulation and any legitimate penological objectives because\\nthe California regulation at issue did not leave room for case-\\nby-case discretion. See id. at 879. The restriction\\ncategorically banned witnesses from viewing the initial\\nprocedures of executions, regardless of whether there were\\nany specific security concerns.\\n\\n We then considered the four factors relevant to the\\ninquiry: (1) whether there is a “valid, rational connection\\nbetween the prison regulation and the legitimate\\ngovernmental interest put forward to justify it,” (2) “whether\\nthere are alternative means of exercising the right that\\nremain open to prison inmates,” (3) what “impact\\naccommodation of the asserted constitutional right will have\\non guards and other inmates, and on the allocation of prison\\nresources generally,” and (4) whether there are “obvious,\\neasy alternatives . . . that fully accommodate[] the prisoner’s\\nrights at de minimis cost to valid penological interests.”\\nTurner, 482 U.S. at 89–91 (internal quotation marks\\nomitted). We concluded that the California viewing\\n\\n FIRST AMENDMENT COALITION V. RYAN 15\\n\\nrestriction was not reasonably related to a legitimate\\npenological interest and thus was unconstitutional. See\\nWoodford, 299 F.3d at 879–85.\\n\\n The same deferential standard of review applies here as\\nwell. As in Woodford, we are dealing with a regulation\\nregarding executions that will take place inside a prison. See\\nid. at 877–79. We consider the four relevant factors to\\ndetermine whether Arizona’s restrictions on access to the\\nsounds of executions are reasonably related to legitimate\\npenological objectives. As Woodford instructed, we require\\na “closer fit” between the restriction and any legitimate\\npenological interests because the regulation does not allow\\nfor case-by-case discretion. See id. at 879. That is, Arizona\\nimposes a categorical ban on hearing the sounds of\\nexecutions after the intravenous lines are inserted, regardless\\nof whether there are any specific security risks.\\n\\n The plaintiffs have alleged facts that state a plausible\\nclaim that Arizona has unconstitutionally restricted the\\nability of witnesses to hear the sounds of executions, even\\nunder the deferential standard of review applied in\\nWoodford. The defendants attempt to justify the restrictions\\nby arguing that they have a legitimate penological interest in\\nensuring that execution team members are not publicly\\nidentified or attacked. But, according to the factual\\nallegations in the plaintiffs’ complaint, witnesses can hear\\nsounds from the execution room as the execution team\\nbrings the prisoner into the room, secures him to the table,\\nand inserts the intravenous lines. Thus, to the extent that\\nexecution team members could be identified by the sound of\\ntheir voices, witnesses can already hear their voices during\\nthe initial stages of the execution. The defendants also argue\\nthat allowing witnesses to hear the sounds of the entire\\nexecution process could increase the risk of litigation and\\n\\n16 FIRST AMENDMENT COALITION V. RYAN\\n\\ncause execution team members to second-guess their\\nactions. We reject this argument because Arizona does not\\nhave a legitimate penological interest in hampering efforts\\nto ensure the constitutionality of its executions. The\\nplaintiffs have thus plausibly alleged that there is no valid,\\nrational connection between the regulation and cognizable\\ngovernmental interests. See Turner, 482 U.S. at 89–90.\\n\\n The plaintiffs have also plausibly alleged that, with\\nArizona’s restrictions in place, there are no alternative\\nmeans for the public to exercise the right to hear the sounds\\nof executions in their entirety. See id. at 90. As we\\nexplained in Woodford, the public has a right to independent\\neyewitness accounts of the entire execution process. See\\nWoodford, 299 F.3d at 883–84. Reports of executions by the\\nsame prison officials who carry them out are not adequate\\nsubstitutes. See id. at 883.\\n\\n Finally, the plaintiffs have plausibly alleged that there is\\nan available, low-cost alternative to fully accommodate the\\nFirst Amendment right: leaving the microphone in the\\nexecution room on throughout the entire process. See\\nTurner, 482 U.S. at 90–91. This accommodation would not\\nhave a significant impact on guards, other inmates, or the\\nallocation of prison resources. See id. at 90. According to\\nthe plaintiffs’ allegations and Arizona’s own records, a\\nmicrophone is already set up to carry sounds from the\\nexecution room to the witness room during the initial stages\\nof the execution process. Leaving the microphone on for the\\nrest of the process would involve at most only a de minimis\\ncost.\\n\\n B\\n\\n The plaintiffs also assert that the First Amendment right\\nof access to governmental proceedings entitles them to\\n\\n FIRST AMENDMENT COALITION V. RYAN 17\\n\\ninformation regarding the manufacturers, sellers, lot\\nnumbers, National Drug Codes, and expiration dates of\\nlethal-injection drugs, as well as documentation regarding\\nthe qualifications of certain execution team members. We\\nagree with the district court that neither the public nor the\\npress has a First Amendment right of access to this\\ninformation.\\n\\n As the Supreme Court originally conceptualized it, the\\nFirst Amendment right of access to governmental\\nproceedings refers to the right of the public to attend and\\nobserve those proceedings. In the initial cases recognizing\\nthe right, the Court held that the public has the right to attend\\ncriminal trials, see Globe Newspaper Co., 457 U.S. at 606;\\nRichmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580\\n(1980) (plurality opinion), the jury-selection process, see\\nPress-Enterprise Co. v. Superior Court, 464 U.S. 501, 512\\n(1984) (Press-Enterprise I), and preliminary hearings, see\\nPress-Enterprise II, 478 U.S. at 13. In situations in which\\nother interests justify the closure of a proceeding, the Court\\nheld that the public has a right to access a transcript of the\\nproceeding within a reasonable time. See Press-Enterprise\\nII, 478 U.S. at 13; Press-Enterprise I, 464 U.S. at 512. Our\\ncourt has since extended the right of access to various\\ndocuments filed in criminal proceedings. For example, we\\nhave held that the public has the right to access plea\\nagreements, see Oregonian Publishing Co. v. United States\\nDistrict Court, 920 F.2d 1462, 1465–66 (9th Cir. 1990),\\ndocuments filed in pretrial proceedings, see Associated\\nPress v. United States District Court, 705 F.2d 1143, 1145\\n(9th Cir. 1983), and documents filed in post-conviction\\nproceedings, see CBS, Inc. v. United States District Court,\\n765 F.2d 823, 825 (9th Cir. 1985).\\n\\n18 FIRST AMENDMENT COALITION V. RYAN\\n\\n The plaintiffs analogize information regarding execution\\ndrugs and personnel to the documents described above.\\nThey argue that the information is just as important to\\nunderstanding executions as the documents at issue in our\\nprior cases are to understanding criminal proceedings, and\\nthat the public therefore has a right of access to the\\ninformation sought here. The plaintiffs correctly point out\\nthat we held that such a right likely exists in Wood, 759 F.3d\\nat 1082–86, but that decision was summarily vacated by the\\nSupreme Court.\\n\\n We conclude that the requested information differs from\\nthe requested documents in precedential cases in material\\nways and that the public does not have a right of access to\\nthe information at issue here. As explained above, the\\nSupreme Court has held that the public has a right of access\\nto transcripts of various criminal proceedings. See, e.g.,\\nPress-Enterprise II, 478 U.S. at 13 (preliminary hearing);\\nPress-Enterprise I, 464 U.S. at 512 (jury-selection process).\\nInformation regarding execution drugs and personnel bears\\nno resemblance to a transcript. It does not provide a\\ndescriptive account of the execution process, as a transcript\\nwould. The reason for providing the public with access to a\\ntranscript also does not apply here. The Supreme Court has\\nexplained that a transcript may serve as a substitute for\\nholding an open governmental proceeding when other\\ninterests justify the closure of that proceeding. See Press-\\nEnterprise I, 464 U.S. at 512. There is no need for a\\ntranscript in this context, since the public already has a right\\nto attend and observe executions. See Woodford, 299 F.3d\\nat 877.\\n\\n Information regarding execution drugs and personnel\\nalso differs from other documents to which the public has a\\nright of access. We have held that the public has the right to\\n\\n FIRST AMENDMENT COALITION V. RYAN 19\\n\\naccess documents filed in certain judicial proceedings. See,\\ne.g., Oregonian Publishing Co., 920 F.2d at 1465–66 (plea\\nagreement and related documents); CBS, Inc., 765 F.2d at\\n825 (documents filed in post-conviction proceedings);\\nAssociated Press, 705 F.2d at 1145 (documents filed in\\npretrial proceedings). Those documents are part of the\\nofficial judicial record. See CBS, Inc., 765 F.2d at 826. We\\nhave never held that the right of access extends to documents\\nbeyond those in the record just because they may shed light\\non a criminal proceeding. For example, we have never held\\nthat the First Amendment gives the public a right to access\\njudicial conference notes or to all documents in the\\nprosecutor’s possession, and the Supreme Court has\\nsuggested that the First Amendment does not provide for\\nsuch a right. See Pell v. Procunier, 417 U.S. 817, 833–34\\n(1974).\\n\\n Unlike the documents to which the public has a right of\\naccess, the requested information is not part of any official\\nrecord of the execution proceeding. It is simply information\\nin the government’s possession that would enhance the\\nunderstanding of executions. But, as the Supreme Court has\\nstated, the First Amendment does not “mandate[] a right of\\naccess to government information or sources of information\\nwithin the government’s control.” Houchins v. KQED, Inc.,\\n438 U.S. 1, 15 (1978) (plurality opinion).\\n\\n We also reject the plaintiffs’ argument that the holding\\nof Woodford—that the public has a right to view executions\\nin their entirety—directly resolves this issue. According to\\nthe plaintiffs, in analogous medical settings, witnesses\\nwould be able to view drug labels and the nametags of\\nmedical personnel, which would allow them to observe\\ninformation regarding the source of drugs and the\\nqualifications of medical personnel. The plaintiffs argue that\\n\\n20 FIRST AMENDMENT COALITION V. RYAN\\n\\nknowing the source of the drugs would, in turn, provide\\ninformation about the quality of the drugs. The plaintiffs\\nthus contend that the right to view executions in their entirety\\nincludes the right to access the requested information\\nregarding execution drugs and personnel.\\n\\n Woodford’s holding does not extend that far. There, we\\nheld that the public and the press have the right to view\\nexecutions in their entirety, “including those ‘initial\\nprocedures’ that are inextricably intertwined with the\\nprocess of putting the condemned inmate to death.”\\nWoodford, 299 F.3d at 877. We did not hold that there is a\\nFirst Amendment right to examine executions in minute\\ndetail, such that witnesses could see the drug labels and the\\nnametags of execution team members. Nor did we hold that\\nthe public is entitled to all information that is “inextricably\\nintertwined” with executions. Woodford did not change the\\ndefault rule that the right of access “does not extend to every\\npiece of information that conceivably relates to a\\ngovernmental proceeding, even if the governmental\\nproceeding is itself open to the public.” Wood, 759 F.3d at\\n1092 (Bybee, J., dissenting).\\n\\n Other courts have reached the same conclusion. The\\nSixth Circuit concluded that the Press-Enterprise II test does\\nnot apply in this context, and held that the public does not\\nhave a First Amendment right of access to information\\nregarding the identities of execution team members or the\\nidentities of entities that transport, manufacture, compound,\\nor supply lethal-injection drugs. See Phillips v. DeWine,\\n841 F.3d 405, 417–20 (6th Cir. 2016). Similarly, the Eighth\\nCircuit has held that the public does not have a First\\nAmendment right to know the identities of the entities that\\nsupply and compound lethal-injection drugs. See Zink v.\\nLombardi, 783 F.3d 1089, 1111–13 (8th Cir. 2015). And the\\n\\n FIRST AMENDMENT COALITION V. RYAN 21\\n\\nEleventh Circuit has held that the public does not have a\\nright to know the qualifications of execution team members\\nor the source of lethal-injection drugs. See Wellons v.\\nCommissioner, 754 F.3d 1260, 1266–67 (11th Cir. 2014).\\n\\n Given Arizona’s checkered past with executions, we are\\ntroubled by the lack of detailed information regarding\\nexecution drugs and personnel. Such information would\\nundoubtedly aid the public and death-row inmates in\\nmonitoring the constitutionality of Arizona’s execution\\nproceedings. However, as the Supreme Court has held, the\\nFirst Amendment does not mandate the disclosure of “all the\\ninformation provided by [freedom of information] laws.”\\nMcBurney v. Young, 569 U.S. 221, 232 (2013). Thus,\\nalthough the inmates may be able to assert a procedural due\\nprocess right to obtain the information they seek, see Lopez,\\n680 F.3d at 1083–84 (Berzon, J., concurring in part and\\ndissenting in part), neither the inmates nor the First\\nAmendment Coalition possesses such a right under the First\\nAmendment.\\n\\n Because the First Amendment right of access to\\ngovernmental proceedings does not entitle the plaintiffs to\\ninformation regarding execution drugs and personnel as a\\nmatter of law, the district court did not abuse its discretion\\nby dismissing with prejudice those aspects of the plaintiffs’\\nclaim relating to such information.\\n\\n III\\n\\n We turn next to the plaintiffs’ claim that Arizona’s\\nrestrictions violate the inmates’ First Amendment right of\\naccess to the courts. We agree with the district court that this\\nclaim fails as a matter of law.\\n\\n22 FIRST AMENDMENT COALITION V. RYAN\\n\\n We have held that there are two types of claims that can\\nbe raised in this context. See Silva v. Di Vittorio, 658 F.3d\\n1090, 1102–04 (9th Cir. 2011), overruled on other grounds\\nby Coleman v. Tollefson, 135 S. Ct. 1759 (2015). The first\\ncategory of claims involves the denial of adequate law\\nlibraries and other legal assistance to prisoners, which\\nprevents them from challenging their sentences and the\\nconditions of their confinement. See Hebbe, 627 F.3d\\nat 342–43. The second category of claims involves active\\ninterference with a prisoner’s right to litigate, such as seizing\\nand withholding the prisoner’s legal files. See Silva,\\n658 F.3d at 1102–04. Neither of those rights is implicated\\nhere, for the plaintiffs do not contend that Arizona officials\\nhave limited the inmates’ ability to litigate in any way.\\n\\n The Supreme Court has explained that the First\\nAmendment right of access to the courts does not include the\\nright of prisoners to “discover grievances[] and to litigate\\neffectively once in court.” Lewis v. Casey, 518 U.S. 343,\\n354 (1996) (emphasis omitted). That is what the inmates\\nseek here. According to the Second Amended Complaint,\\nthe inmates are seeking access to execution sounds and\\ninformation regarding execution drugs and personnel in\\norder to discover whether they have a colorable claim that\\ntheir executions will be carried out in violation of the Eighth\\nand Fourteenth Amendments. The First Amendment right\\nof access to the courts does not entitle the inmates to such\\ninformation. See Phillips, 841 F.3d at 420; Zink, 783 F.3d\\nat 1108; Wellons, 754 F.3d at 1267.\\n\\n Because the inmates’ right-of-access-to-the-courts claim\\nfails as a matter of law, the district court did not abuse its\\ndiscretion by dismissing this claim without leave to amend.\\n\\n AFFIRMED in part, REVERSED in part, and\\nREMANDED.\\n\\n FIRST AMENDMENT COALITION V. RYAN 23\\n\\n The parties shall bear their own costs.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4466,"cells":{"id":{"kind":"number","value":4662034,"string":"4,662,034"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Zayn Al-Abidin Husayn v. United States"},"decision_date":{"kind":"string","value":"2019-09-18"},"docket_number":{"kind":"string","value":"18-35218"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Ronald M. Gould and Richard A. Paez, Circuit Judges, and Dean D. Pregerson, * District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PAEZ, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\n ZAYN AL-ABIDIN MUHAMMAD No. 18-35218\\n HUSAYN; JOSEPH MARGULIES,\\n Petitioners-Appellants, D.C. No.\\n 2:17-cv-00171-\\n v. JLQ\\n\\n JAMES ELMER MITCHELL; JOHN\\n JESSEN, OPINION\\n Respondents,\\n\\n UNITED STATES OF AMERICA,\\n Intervenor-Appellee.\\n\\n Appeal from the United States District Court\\n for the Eastern District of Washington\\n Justin L. Quackenbush, District Judge, Presiding\\n\\n Argued and Submitted March 5, 2019\\n Seattle, Washington\\n\\n Filed September 18, 2019\\n\\n Before: Ronald M. Gould and Richard A. Paez, Circuit\\n Judges, and Dean D. Pregerson, * District Judge.\\n\\n\\n\\n *\\n The Honorable Dean D. Pregerson, United States District Judge\\nfor the Central District of California, sitting by designation.\\n\\n2 HUSAYN V. UNITED STATES\\n\\n Opinion by Judge Paez;\\n Dissent by Judge Gould\\n\\n\\n SUMMARY **\\n\\n\\n State Secrets Privilege / Subpoena\\n\\n The panel reversed the district court’s order quashing a\\nsubpoena sought by Abu Zubaydah, who is currently held at\\nthe U.S. detention facility in the Guantanamo Bay Naval\\nBase in Cuba, and his attorney (“Petitioners”), and\\ndismissing the case in its entirety.\\n\\n Petitioners filed an ex parte application for discovery\\npursuant to 28 U.S.C. § 1782, and sought an order to\\nsubpoena James Elmer Mitchell and John Jessen for their\\ndepositions for use in an ongoing criminal investigation in\\nPoland about the torture to which Abu Zubaydah was\\nsubjected in that country. The district court originally\\ngranted the discovery application, but subsequently quashed\\nthe subpoenas after the U.S. government intervened and\\nasserted the state secrets privilege.\\n\\n The panel agreed with the district court that certain\\ninformation requested was not privileged because it was not\\na state secret that would pose an exceptionally grave risk to\\nnational security. The panel agreed that the government’s\\nassertion of the state secrets privilege was valid over much\\nof the information requested. The panel concluded,\\nhowever, that the district court erred in quashing the\\n\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\n HUSAYN V. UNITED STATES 3\\n\\nsubpoenas in toto rather than attempting to disentangle\\nnonprivileged from privileged information. The panel\\nremanded for further proceedings.\\n\\n Judge Gould dissented, and would affirm the district\\ncourt. Judge Gould would defer to the view of then-CIA\\nDirector and current Secretary of State Michael Pompeo that\\nthe disclosure of secret information in this proceeding\\n“reasonably could be expected to cause serious, and in many\\ninstances, exceptionally grave damage to U.S. national\\nsecurity.”\\n\\n\\n COUNSEL\\n\\nDavid F. Klein (argued) and John Chamberlain, Pillsbury\\nWinthrop Shaw Pittman LLP, Washington, D.C.; Jerry\\nMoberg, Jerry Moberg & Associates, Ephrata, Washington;\\nfor Petitioners-Appellants.\\n\\nH. Thomas Byron III (argued), Appellate Staff; Joseph H.\\nHarrington, United States Attorney; Civil Division, United\\nStates Department of Justice, Washington, D.C.; for\\nIntervenor-Appellee.\\n\\n4 HUSAYN V. UNITED STATES\\n\\n OPINION\\n\\nPAEZ, Circuit Judge:\\n\\n Zayn al-Abidin Muhammad Husayn (“Abu Zubaydah”) 1\\nis currently held at the U.S. detention facility in the\\nGuantanamo Bay Naval Base in Cuba. Abu Zubaydah was\\nformerly detained as part of the Central Intelligence Agency\\n(“CIA”)’s detention and interrogation program, also\\ncommonly known as the post-9/11 “enhanced interrogation”\\nor torture program. In 2017, Abu Zubaydah and his attorney,\\nJoseph Margulies (collectively “Petitioners”), filed an ex\\nparte application for discovery pursuant to 28 U.S.C. § 1782,\\nwhich permits certain domestic discovery for use in foreign\\nproceedings. They sought an order to subpoena James Elmer\\nMitchell and John Jessen for their depositions for use in an\\nongoing criminal investigation in Poland about the torture to\\nwhich Abu Zubaydah was subjected in that country. The\\ndistrict court originally granted the discovery application,\\nbut subsequently quashed the subpoenas after the U.S.\\ngovernment intervened and asserted the state secrets\\nprivilege.\\n\\n The Supreme Court has long recognized that in\\nexceptional circumstances, courts must act in the interest of\\nthe country’s national security to prevent the disclosure of\\nstate secrets by excluding privileged evidence from the case\\nand, in some instances, dismissing the case entirely. See\\nTotten v. United States, 92 U.S. 105 (1875); see also United\\nStates v. Reynolds, 345 U.S. 1 (1953). This appeal presents\\na narrow but important question: whether the district court\\n\\n 1\\n Abu Zubaydah’s birth name was Zayn al-Abidin Muhammad\\nHusayn but he is known as Abu Zubaydah in litigation and public\\nrecords.\\n\\n HUSAYN V. UNITED STATES 5\\n\\nerred in quashing the subpoenas after concluding that not all\\nthe discovery sought was subject to the state secrets\\nprivilege.\\n\\n We have jurisdiction pursuant to 28 U.S.C. § 1291, and\\nwe reverse. We agree with the district court that certain\\ninformation requested is not privileged because it is not a\\nstate secret that would pose an exceptionally grave risk to\\nnational security. We also agree that the government’s\\nassertion of the state secrets privilege is valid over much of\\nthe information requested. We conclude, however, that the\\ndistrict court erred in quashing the subpoenas in toto rather\\nthan attempting to disentangle nonprivileged from\\nprivileged information.\\n\\n We have “emphasize[d] that it should be a rare case\\nwhen the state secrets doctrine leads to dismissal at the outset\\nof a case.” Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d\\n1070, 1092 (2010) (en banc); see also Reynolds, 345 U.S.\\nat 9–10 (noting that “[j]udicial control over the evidence in\\na case cannot be abdicated to the caprice of executive\\nofficers”). Here, the underlying proceeding is a limited\\ndiscovery request that can be managed by the district court,\\nwhich is obligated “to use its fact-finding and other tools to\\nfull advantage before it concludes that the rare step of\\ndismissal is justified.” Mohamed, 614 F.3d at 1093. We\\ntherefore reverse the district court’s judgment dismissing\\nPetitioners’ section 1782 application for discovery and\\nremand for further proceedings. 2\\n\\n 2\\n Because the district court granted the motion to quash based on the\\nstate secrets privilege, it did not address the government’s alternative\\narguments under the Central Intelligence Agency Act, 50 U.S.C. § 3507,\\nand the National Security Act, 50 U.S.C. § 3024(i). If relevant, the\\ndistrict court may consider these arguments on remand.\\n\\n6 HUSAYN V. UNITED STATES\\n\\n I.\\n\\n A.\\n\\n In late March 2002, Pakistani government authorities,\\nworking with the CIA, captured Abu Zubaydah in Pakistan.\\nAt the time, Abu Zubaydah was thought to be a high-level\\nmember of Al-Qa’ida 3 with detailed knowledge of terrorist\\nplans. A 2014 report by the Senate Select Committee on\\nIntelligence Study on the CIA’s detention and interrogation\\nprogram (“Senate Select Committee Report”) later revealed\\nthis characterization to be erroneous.\\n\\n In the first four years of his detention, Abu Zubaydah\\nwas held as an enemy combatant and transferred to various\\nsecret CIA “dark sites” for interrogation. Journalists, non-\\ngovernmental organizations, and Polish government\\nofficials have widely reported that one of those sites was in\\nPoland. In 2015, the European Court on Human Rights\\n(“ECHR”) found that Abu Zubaydah was detained at a CIA\\nsite in Poland from December 2002 to September 2003.\\n\\n Numerous sources also confirm that Abu Zubaydah was\\nsubjected to so-called “enhanced interrogation” techniques\\nwhile detained at these CIA sites. These techniques were\\nproposed and developed by Mitchell and Jessen, 4 who at that\\n\\n 3\\n For consistency, we employ the spelling used by the Senate Select\\nCommittee Report in this opinion.\\n\\n 4\\n Mitchell and Jessen are referred to as “SWIGERT” and\\n“DUNBAR” in the Senate Select Committee Report, and have admitted\\nto their involvement with the CIA program in a separate lawsuit, Salim\\nv. Mitchell, No. 2:15-cv-286-JLQ, Answer to Complaint and Affirmative\\nDefenses (E.D. Wash. June 16, 2016) (“Salim”).\\n\\n HUSAYN V. UNITED STATES 7\\n\\npoint were independent contractors for the CIA. They\\nworked on “novel interrogation methods” intended to break\\ndown Abu Zubaydah’s resistance, including the use of\\ninsects—to take advantage of his entomophobia—and mock\\nburial. The details of Abu Zubaydah’s treatment during this\\nperiod are uncontroverted: he was persistently and\\nrepeatedly waterboarded; he spent hundreds of hours in a\\n“confinement box,” described as coffin-sized; he was\\nsubjected to various combinations of interrogation\\ntechniques including “walling, 5 attention grasps, 6 slapping,\\nfacial hold, stress positions, cramped confinement, white\\nnoise and sleep deprivation”; his food intake was\\nmanipulated to minimize the potential of vomiting during\\nwaterboarding. To use colloquial terms, as was suggested\\nby the Senate Select Committee Report, Abu Zubaydah was\\ntortured.\\n\\n The ECHR found that some of this torture took place in\\nPoland. Mitchell and Jessen traveled to the CIA black site\\nthere at least twice to supervise the interrogations.\\nDeclassified CIA cables confirm Mitchell’s and Jessen’s\\ninvolvement in Abu Zubaydah’s torture. Abu Zubaydah was\\neventually transferred to a succession of facilities outside of\\nPoland before arriving in Guantanamo Bay, where he\\nremains today. Abu Zubaydah has allegedly sustained\\npermanent brain damage and physical impairments,\\n\\n 5\\n According to a declassified U.S. Department of Justice Office of\\nLegal Counsel (“OLC”) memo, “walling” refers to when an individual\\nis firmly pushed against a flexible false wall, hitting the shoulder blades,\\nto create the sensation of physical impact that is worse than it is.\\n\\n 6\\n The same OLC memo describes “attention grasp” to consist of\\ngrasping an individual with both hands, one hand on each side of the\\ncollar opening, in a controlled and quick motion, drawing the individual\\ntoward the interrogator.\\n\\n8 HUSAYN V. UNITED STATES\\n\\nincluding over 300 seizures in the span of three years and the\\nloss of his left eye.\\n\\n In 2010, Abu Zubaydah’s attorneys and certain\\nhumanitarian organizations filed a criminal complaint in\\nPoland on his behalf seeking to hold Polish officials\\naccountable for their complicity in his unlawful detention\\nand torture. That investigation closed without any\\nprosecutions or convictions. In 2013, Abu Zubaydah’s\\nattorneys filed an application with the ECHR alleging that\\nPoland had violated the Convention for the Protection of\\nHuman Rights and Fundamental Rights and failed to\\nundertake a proper investigation. This resulted in the\\nECHR’s decision in Case of Husayn (Abu Zubaydah) v.\\nPoland, No. 7511/13, Eur. Ct. H.R. (2015). The court found\\n“beyond reasonable doubt” that Abu Zubaydah was detained\\nin Poland, that “the treatment to which [he] was subjected by\\nthe CIA during his detention in Poland . . . amount[ed] to\\ntorture,” and that Poland had failed to abide by its\\nobligations under the European Convention on Human\\nRights. The court accordingly awarded damages to Abu\\nZubaydah.\\n\\n After the ECHR issued its decision—finding, among\\nother things, that Poland failed to sufficiently investigate\\nhuman rights violations related to Abu Zubaydah’s treatment\\nin Poland—Polish authorities reopened their investigations\\ninto the violations, focusing on the culpability of Polish\\ncitizens and government officials in Abu Zubaydah’s\\ndetention. The Polish government requested evidence from\\nthe United States through the Mutual Legal Assistance\\nTreaty (“MLAT”) between the two countries. The United\\nStates denied the Polish government’s request.\\nSubsequently, Polish prosecutors followed up with Abu\\n\\n HUSAYN V. UNITED STATES 9\\n\\nZubaydah’s lawyers to ask for assistance with obtaining\\nevidence necessary to pursue the prosecution. 7\\n\\n B.\\n\\n Abu Zubaydah and his attorney, Margulies, filed an ex\\nparte application for discovery in the Eastern District of\\nWashington pursuant to 28 U.S.C. § 1782. Section 1782\\nprovides that “[t]he district court of the district in which a\\nperson resides or is found may order him to give his\\ntestimony or statement or to produce a document or other\\nthing for use in a proceeding in a foreign or international\\ntribunal.” Abu Zubaydah and his attorney sought a\\ndiscovery order subpoenaing Mitchell and Jessen to produce\\ndocuments and give deposition testimony for use in the\\nongoing criminal investigation in Poland.8 They requested\\nthat Mitchell and Jessen provide, among other related items,\\ndocuments concerning the detention facility in Poland, the\\nidentities of Polish officials involved in the establishment or\\noperation of the detention facility, the use of interrogation\\ntechniques, conditions of confinement and torture of those\\nbeing held, and any contracts made between Polish\\ngovernment officials or private persons residing in Poland\\nand U.S. personnel for use of the property upon which the\\ndetention facilities was located.\\n\\n\\n 7\\n Under Polish law, victims of crimes under investigation, like Abu\\nZubaydah, have a right to submit evidence through counsel to aid in the\\nPolish Prosecutor’s Office’s investigation.\\n\\n 8\\n Mitchell and Jessen co-founded Mitchell, Jessen & Associates,\\nwhich is headquartered in Spokane, Washington, and Jessen resides in\\nSpokane. Hence, they both “reside[] or [are] found” in the relevant\\ndistrict. 28 U.S.C. § 1782.\\n\\n10 HUSAYN V. UNITED STATES\\n\\n The United States submitted a “Statement of Interest”\\narguing that the district court should not grant Abu\\nZubaydah’s application based on the four factors outlined in\\nIntel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241\\n(2004). 9 The district court evaluated the section 1782\\napplication under the Intel factors and found that the Intel\\nfactors weighed in favor of granting the application for\\ndiscovery. It noted that the government’s concerns\\nregarding privilege and classification of documents were\\nhypothetical and could be raised at a later point. The district\\ncourt granted the application and Petitioners served the\\nsubpoenas on Mitchell and Jessen.\\n\\n\\n\\n\\n 9\\n The four Intel factors are: (1) whether the person from whom\\ndiscovery is sought is a participant in the foreign proceeding; (2) the\\nnature of the foreign tribunal, the character of the proceedings underway\\nabroad and the receptivity of the foreign government to U.S. federal-\\ncourt assistance; (3) whether the discovery request is an attempt to\\ncircumvent foreign proof-gathering restrictions or other policies of a\\nforeign country or the United States; and, (4) whether the discovery\\nrequest is unduly intrusive or burdensome. Intel, 542 U.S. at 264–65.\\nThe third Intel factor allows the court to consider the potential for abuse\\nof discovery for use in the foreign court. Id. at 265. “Once the court has\\ndetermined that such abuses are unlikely,” and grants the section 1782\\napplication, “the ordinary tools of discovery management, including\\n[Federal Rule of Civil Procedure] 26, come into play; and with\\nobjections based on the fact that discovery is being sought for use in a\\nforeign court cleared away, section 1782 drops out.” Heraeus Kulzer,\\nGmbH v. Biomet, Inc., 633 F.3d 591, 597 (7th Cir. 2011) (citing\\nEcuadorian Plaintiffs v. Chevron Corp., 619 F.3d 373, 377–78 (5th Cir.\\n2010); Weber v. Finker, 554 F.3d 1379, 1384–85 (11th Cir. 2009)). In\\nother words, once a section 1782 application is granted, the ordinary\\nrules of civil procedure relating to discovery shift into place.\\n\\n HUSAYN V. UNITED STATES 11\\n\\n After Mitchell and Jessen entered their appearance in\\ndistrict court, 10 the U.S. government filed a motion to\\nintervene and a motion to quash the subpoenas. In support\\nof the latter motion, the government made three arguments.\\nFirst, it argued that the district court lacked jurisdiction over\\nthe case under 28 U.S.C. § 2241(e)(2), which strips\\njurisdiction for courts to hear or consider any nonhabeas\\naction against the United States or its agents relating to any\\naspect of the detention, transfer, treatment, trial or conditions\\nof confinement of a designated enemy combatant outside the\\nprovisions of the Detainee Treatment Act of 2005, 10 U.S.C.\\n§ 801. Second, the government argued that the discovery\\nsought is protected by the state secrets privilege, relying on\\ntwo declarations from then-CIA Director, Michael\\nPompeo. 11 Third, it argued that both the National Security\\nAct of 1947 and the Central Intelligence Agency Act of 1949\\nprohibit the discovery sought.\\n\\n The district court granted the government’s motion to\\nintervene and motion to quash the subpoenas. The court\\nrejected the government’s first argument regarding the lack\\nof jurisdiction, noting that the government offered nothing\\nto establish an agency relationship between Mitchell and\\nJessen and the United States. The court then applied the\\nthree-part test outlined in Mohamed, 614 F.3d at 1080, to\\nevaluate the government’s assertion of the state secrets\\n\\n\\n\\n 10\\n Neither Mitchell nor Jessen opposed the discovery requested in\\nthis case and have taken no position on the issues in this appeal.\\n 11\\n Pompeo submitted a declaration addressing Petitioners’ section\\n1782 application and incorporated a prior declaration that he submitted\\nin the Salim lawsuit.\\n\\n12 HUSAYN V. UNITED STATES\\n\\nprivilege. 12 First, it found that the government had followed\\nthe procedural requirements for invoking the privilege.\\nSecond, it concluded that the fact of the CIA’s involvement\\nwith a facility in Poland was not a state secret that posed an\\nexceptionally grave risk to national security. The court\\nagreed, however, that other information, such as the roles\\nand identities of Polish citizens involved with the CIA site,\\nis covered by the state secrets privilege. Third, the court\\nconcluded that “[m]eaningful discovery cannot proceed in\\nthis matter without disclosing information that the\\nGovernment contends is subject to the state secrets\\nprivilege,” and thus it granted the motion to quash the\\nsubpoenas in their entirety and entered judgment. Abu\\nZubaydah and Margulies timely appealed.\\n\\n II.\\n\\n “We review de novo the interpretation and application of\\nthe state secrets doctrine and review for clear error the\\ndistrict court’s underlying factual findings.” Mohamed,\\n614 F.3d at 1077 (citing Al-Haramain Islamic Found., Inc.\\nv. Bush, 507 F.3d 1190, 1196 (9th Cir. 2007)).\\n\\n\\n\\n\\n 12\\n Although the state secrets doctrine encompasses a complete bar\\nunder Totten, 92 U.S. at 107, and an evidentiary privilege under\\nReynolds, 345 U.S. at 7–8, the district court correctly concluded that the\\nTotten bar does not apply in this case because the very subject matter of\\nthe action—the CIA’s enhanced interrogation program—is not a state\\nsecret. See Mohamed, 614 F.3d at 1085–89 (applying Reynolds privilege\\nanalysis); see also El-Masri v. United States, 479 F.3d 296, 307–10 (4th\\nCir. 2007) (same).\\n\\n HUSAYN V. UNITED STATES 13\\n\\n III.\\n\\n Petitioners argue that the district court erred in quashing\\nthe subpoenas in their entirety based on the state secrets\\nprivilege. The parties essentially disagree over the proper\\nanalysis under steps two and three under Reynolds. 13\\n\\n A.\\n\\n Before reviewing the district court’s decision, we\\nprovide some brief background on the state secrets privilege.\\nThe privilege derives from a common law doctrine that\\n“encompasses a ‘privilege against revealing military [or\\nstate] secrets, a privilege which is well established in the law\\nof evidence.’” Mohamed, 614 F.3d at 1079 (alterations in\\noriginal) (quoting Reynolds, 345 U.S. at 6–7). “The\\nprivilege is not to be lightly invoked.” Al-Haramain,\\n507 F.3d at 1196. “A successful assertion of privilege under\\nReynolds will remove the privileged evidence from the\\nlitigation.” Mohamed, 614 F.3d at 1079. “Unlike the Totten\\nbar, a valid claim of privilege under Reynolds does not\\nautomatically require dismissal of the case.” Id. Assertion\\nof the state secrets privilege “will require dismissal [where]\\nit . . . become[s] apparent during the Reynolds analysis that\\n\\n 13\\n We are not persuaded by the government’s alternative argument\\nthat the district court’s decision can be affirmed as an exercise of\\ndiscretion to deny section 1782 discovery requests. First, the district\\ncourt exercised its discretion to grant the section 1782 application after\\napplying the Intel factors. That order is not on appeal. Moreover, the\\norder that was appealed was not a discretionary one. The district court\\nconcluded that it was required by the state secrets privilege to quash the\\nsubpoenas. The government’s attempt to challenge the district court’s\\nfirst order seeks to avoid the discretion expressly given to district courts\\nover section 1782 applications. See Intel, 542 U.S. at 255–61 (rejecting\\ncategorical limitations on section 1782’s reach based on the statute’s text\\nand legislative history giving discretion to the district court).\\n\\n14 HUSAYN V. UNITED STATES\\n\\nthe case cannot proceed without privileged evidence, or that\\nlitigating the case to a judgment on the merits would present\\nan unacceptable risk of disclosing state secrets.” Id.\\n\\n The Supreme Court identified and applied the state\\nsecrets privilege in Reynolds, where three estates filed\\nwrongful-death suits against the government following the\\nuntimely deaths of three civilian observers during a test\\nflight of a B-29 bomber. 345 U.S. at 3. In discovery,\\nplaintiffs sought production of the Air Force’s official\\naccident investigation report and the statements of three\\nsurviving crew members. Id. The Air Force refused to\\nproduce the materials, citing the need to protect national\\nsecurity and military secrets because the aircraft and\\npersonnel on board “were engaged in a highly secret\\nmission,” id. at 4, and the material could reveal information\\nabout the “development of highly technical and secret\\nmilitary equipment,” id. at 5. The district court ordered the\\ngovernment to produce the documents in camera so that the\\ncourt could determine whether they contained privileged\\nmaterial. When the government refused, the district court\\nimposed sanctions and ruled against the government on the\\nissue of negligence. Id. The Court of Appeals affirmed. Id.\\n\\n The Supreme Court reversed and sustained the\\ngovernment’s assertion of privilege after concluding, “from\\nall the circumstances of the case, that there [wa]s a\\nreasonable danger that compulsion of the evidence will\\nexpose military matters which, in the interest of national\\nsecurity, should not be divulged.” Id. at 10. In reaching this\\nconclusion, the Court noted “that this is a time of vigorous\\npreparation for national defense” and that “air power is one\\nof the most potent weapons in [the United States’] scheme\\nof defense.” Id. Rather than dismissing the case, however,\\nthe Court noted that it could be possible for the plaintiffs “to\\n\\n HUSAYN V. UNITED STATES 15\\n\\nadduce the essential facts as to causation [in support of their\\ntort claims] without resort to material touching upon military\\nsecrets,” and remanded for further proceedings. Id. at 11–\\n12.\\n\\n Based on Reynolds, we identified three steps for\\nanalyzing claims of the state secrets privilege:\\n\\n First, we must ascertain that the procedural\\n requirements for invoking the state secrets\\n privilege have been satisfied. Second, we\\n must make an independent determination\\n whether the information is privileged.\\n Finally, the ultimate question to be resolved\\n is how the matter should proceed in light of\\n the successful privilege claim.\\n\\nMohamed, 614 F.3d at 1080 (internal alterations and\\nquotation marks omitted) (quoting Al-Haramain, 507 F.3d\\nat 1202). The parties do not contest that the government\\nfulfilled the first requirement by filing the declarations from\\nthen-CIA Director Pompeo, who formally asserted the state\\nsecrets privilege with specificity in this case. See Reynolds,\\n245 U.S. at 7–8 (“There must be a formal claim of privilege,\\nlodged by the head of the department which has control over\\nthe matter, after actual personal consideration by that\\nofficer.”). We therefore proceed to the second and third\\nsteps of the Reynolds test.\\n\\n B.\\n\\n “When the privilege has been properly invoked, ‘we\\nmust make an independent determination whether the\\ninformation is privileged.’” Mohamed, 614 F.3d at 1081\\n(quoting Al-Haramain, 507 F.3d at 1202). “The court must\\nsustain a claim of privilege when it is satisfied, ‘from all the\\n\\n16 HUSAYN V. UNITED STATES\\n\\ncircumstances of the case, that there is a reasonable danger\\nthat compulsion of the evidence will expose . . . matters\\nwhich, in the interest of national security, should not be\\ndivulged.’” Id. (quoting Reynolds, 345 U.S. at 10). “The\\nstate secrets privilege has been held to apply to information\\nthat would result in ‘impairment to the nation’s defense\\ncapabilities, disclosure of intelligence-gathering methods or\\ncapabilities, and disruption of diplomatic relations with\\nforeign governments, or where disclosure would be inimical\\nto national security.’” Fazaga v. Fed. Bureau of\\nInvestigation, 916 F.3d 1202, 1227 (9th Cir. 2019) (quoting\\nBlack v. United States, 62 F.3d 1115, 1118 (8th Cir. 1995)).\\nWe have on more than one occasion commented on the\\ndifficulty of defining what constitutes a “state secret.” Id.\\n(noting “the ambiguity . . . at the outset”); Mohamed,\\n614 F.3d at 1082 (“We do not offer a detailed definition of\\nwhat constitutes a state secret.”).\\n\\n Our guidance on evaluating the need for secrecy has\\nbeen contradictory. On the one hand, “we acknowledge the\\nneed to defer to the Executive on matters of foreign policy\\nand national security and surely cannot legitimately find\\nourselves second guessing the Executive in this area.” Al-\\nHaramain, 507 F.3d at 1203. On the other hand, “the state\\nsecrets doctrine does not represent a surrender of judicial\\ncontrol over access to the courts.” Mohamed, 614 F.3d\\nat 1082 (quoting El-Masri, 479 F.3d at 312). “Rather, ‘to\\nensure that the state secrets privilege is asserted no more\\nfrequently and sweepingly than necessary, it is essential that\\nthe courts continue critically to examine instances of its\\ninvocation.” Id. (quoting Ellsberg v. Mitchell, 709 F.2d 51,\\n58 (D.C. Cir. 1983)). “We take very seriously our obligation\\nto review the [claim] with a very careful, indeed a skeptical,\\neye, and not to accept at face value the government’s claim\\nor justification of privilege.” Al-Haramain, 507 F.3d at\\n\\n HUSAYN V. UNITED STATES 17\\n\\n1203. For instance, “an executive decision to classify the\\ninformation is insufficient to establish that the information is\\nprivileged.” Mohamed, 614 F.3d at 1082 (citing Ellsberg,\\n709 F.2d at 57). “Simply saying ‘military secret,’ ‘national\\nsecurity’ or ‘terrorist threat’ or invoking an ethereal fear that\\ndisclosure will threaten our nation is insufficient to support\\nthe privilege.” Al-Haramain, 507 F.3d at 1203.\\n\\n Here, the government asserts the state secrets privilege\\nover seven categories of information: (1) information that\\ncould identify individuals involved in the CIA detention and\\ninterrogation program; (2) information regarding foreign\\ngovernment cooperation with the CIA; (3) information\\npertaining to the operation or location of any clandestine\\noverseas CIA station, base, or detention facility;\\n(4) information regarding the capture and/or transfer of\\ndetainees; (5) intelligence information about detainees and\\nterrorist organizations, including intelligence obtained or\\ndiscussed in debriefing or interrogation sessions;\\n(6) information concerning CIA intelligence sources and\\nmethods, as well as specific intelligence operations; and,\\n(7) information concerning the CIA’s internal structure and\\nadministration.\\n\\n One of the Pompeo declarations asserts that the\\ndiscovery sought by Petitioners “would tend to confirm or\\ndeny whether or not [Mitchell and Jessen] have information\\nabout these categories as they pertain to whether or not the\\nCIA conducted detention and interrogation operations in\\nPoland and/or with the assistance of the Polish\\nGovernment.” Disclosure of the existence of a clandestine\\nintelligence relationship or the extent to which a foreign\\ngovernment is covertly operating or sharing intelligence\\nwould, according to Pompeo, cause significant harm to\\nnational security because it would: (1) breach the trust on\\n\\n18 HUSAYN V. UNITED STATES\\n\\nwhich the relationship is based; (2) compromise the CIA’s\\nability to obtain intelligence information or secure\\ncooperation in counterterrorism operations; and\\n(3) engender backlash from foreign governments.\\nFurthermore, Pompeo asserts that the specific locations of\\nCIA stations and information about former detention\\nfacilities are generally classified as “SECRET” and “TOP\\nSECRET” respectively because acknowledging the location\\nof covert facilities could endanger the safety of CIA officers\\nand incite backlash from the host country.\\n\\n Reviewing the government’s documents, we note that\\nmuch of the concern animating the assertion of the state\\nsecret privilege is that harm might result from the\\ngovernment’s disclosure of certain information—in\\nparticular, confirming or denying the location of a CIA black\\nsite—rather than a concern that harm might result from the\\nspread of the information per se. This is not surprising, as\\nsubstantial aspects of the information that the government\\ninsists are privileged are basically public knowledge. 14 The\\nPompeo declaration acknowledges that there have been\\nallegations by the media, nongovernmental organizations,\\nand former Polish government officials of the CIA operating\\na detention facility in Poland. Pompeo explains that the\\ngovernment cannot control what former foreign government\\nofficials might choose to say, but that the absence of official\\n\\n 14\\n We cannot agree with the dissent that Article III judges are “not\\nin a position” to reach conclusions with publicly available facts. Dissent\\nat 31. Indeed, the dissent’s position appears to be inconsistent with our\\nessential obligation to review state secrets critically, with a skeptical eye.\\nSee Mohamed, 614 F.3d at 1082 (quoting El-Masri, 479 F.3d at 312); Al-\\nHaramain, 507 F.3d at 1203. We note further that, in the context of\\npreliminary proceedings such as those here, we are not called upon to,\\nand do not, render any final decision on the merits.\\n\\n HUSAYN V. UNITED STATES 19\\n\\nconfirmation from the CIA is the key to preserving an\\n“important element of doubt about the veracity of the\\ninformation.” 15\\n\\n Even if we accept that logic, however, the government\\nfails to explain why discovery here could amount to such an\\n“official confirmation.” The conclusion that the existence of\\na CIA site in Poland is not a secret is not equivalent to a\\nfinding, either by the district court or this court, that the\\ngovernment has taken any official position on the existence\\nof such a facility. Nothing in this opinion should be read to\\nsuggest otherwise. As the district court found, neither\\nMitchell nor Jessen are agents of the government. 16 The\\ngovernment has not contested—and we will not disturb—\\nthat finding. See Mohamed, 614 F.3d at 1077 (noting clear\\nerror standard). As private parties, Mitchell’s and Jessen’s\\ndisclosures are not equivalent to the United States\\nconfirming or denying anything.\\n\\n Moreover, in light of the record, we agree with the\\ndistrict court that disclosure of certain basic facts would not\\n\\n 15\\n The district court, we note, did not accept the government’s\\nposition, and did “not find convincing the claim that merely\\nacknowledging, or denying, the fact the CIA was involved with a facility\\nin Poland poses an exceptionally grave risk to national security.” We\\nneed not and do not address that determination because, regardless\\nwhether governmental acknowledgment would implicate national\\nsecurity, as discussed below, nothing about the government’s\\nparticipation in discovery would constitute governmental\\nacknowledgement or denial of the site’s existence.\\n\\n 16\\n Despite so concluding, the district court inconsistently determined\\nat step three of the Reynolds analysis that the government’s participation\\nin discovery would constitute implicit governmental acknowledgment of\\nthe program. As discussed herein, see infra at n.18, we do not share that\\nassessment.\\n\\n20 HUSAYN V. UNITED STATES\\n\\n“cause grave damage to national security.” Al-Haramain,\\n507 F.3d at 1195. First, we agree with the district court and\\nPetitioners that in order to be a “state secret,” a fact must first\\nbe a “secret.” In other contexts where the state secrets\\nprivilege was applied, the privilege was used to withhold\\ninformation that was not publicly accessible. See Mohamed,\\n614 F.3d at 1087 (“We are precluded from explaining\\nprecisely which matters the privilege covers lest we\\njeopardize the secrets we are bound to protect.”); id. at 1095\\n(Hawkins, J., joined by Schroeder, J., Canby, J., Thomas, J.,\\nand Paez, J., dissenting) (describing onerous procedure\\nundertaken to preserve a “‘cone of silence’ environment” for\\nus to review the sealed record en banc); Al-Haramain,\\n507 F.3d at 1203 (concluding that the “Sealed Document is\\nprotected by the state secrets privilege” after reviewing it in\\ncamera); Kasza v. Browner, 133 F.3d 1159, 1170 (9th Cir.\\n1998) (“Based on our in camera review of both General\\nMoorman’s and Secretary Widnall’s classified declarations,\\n. . . [w]e are convinced that release of such information\\nwould reasonably endanger national security interests.”).\\nInsofar as the government asserts privilege over the basic\\nfact that the CIA detained Abu Zubaydah in Poland and that\\nhe was subjected to torture there, this certainly does not\\nprotect the disclosure of secret information, but rather\\nprevents the discussion of already disclosed information in a\\nparticular case.\\n\\n We note that the discovery request here comes indirectly\\nfrom current Polish authorities, specifically, prosecutors\\nwho have been tasked by the ECHR and the Polish\\ngovernment to investigate the circumstances surrounding\\nAbu Zubaydah’s detention in Poland. This is significant for\\ntwo reasons. First, it reaffirms our conclusion that the fact\\nthat the CIA operated in Poland and possibly collaborated\\nwith Polish individuals over Abu Zubaydah’s detention is\\n\\n HUSAYN V. UNITED STATES 21\\n\\nnot a secret that would harm national security. Cf. Al-\\nHaramain, 507 F.3d at 1200 (noting how details given\\nthrough “voluntary disclosures made by various officials”\\nare not state secrets). Second, it undermines the asserted\\nnational security risks outlined by Pompeo’s declarations,\\nsuch as breaching trust with the cooperating country or\\ngenerating backlash in that country. While we recognize the\\nlegitimacy of these concerns, they appear less of a concern\\nwhen the other country—here, Poland—is investigating\\ncriminal liability of the subject matter involved in this\\ndiscovery application.\\n\\n Last, we emphasize the importance of striking “an\\nappropriate balance . . . between protecting national security\\nmatters and preserving an open court system.” Id. at 1203.\\nWhile it is essential to guard the courts from becoming\\nconduits for undermining the executive branch’s control\\nover information related to national security, these concerns\\ndo not apply when the alleged state secret is no secret at all,\\nbut rather a matter that is sensitive or embarrassing to the\\ngovernment. In other words, the rationale behind the state\\nsecrets privilege is to protect legitimate government\\ninterests, not to shield the government from uncomfortable\\nfacts that may be disclosed or discussed in litigation.\\nProtecting the former is an unfortunate necessity in our\\ncomplicated world of national and international affairs.\\nProtecting the latter is inconsistent with the principle of an\\nindependent judiciary.\\n\\n Reviewing Petitioners’ request for documents, we agree\\nwith the district court that much, although not all, of the\\ninformation requested by Petitioners is covered by the state\\nsecrets privilege. For instance, documents, memoranda, and\\ncorrespondence about the identities and roles of foreign\\nindividuals involved with the detention facility, operational\\n\\n22 HUSAYN V. UNITED STATES\\n\\ndetails about the facility, and any contracts made with Polish\\ngovernment officials or private persons residing in Poland\\nmight implicate the CIA’s intelligence gathering efforts. As\\nexplained in the Pompeo declaration, disclosure of the\\nidentities of foreign nationals who work with the CIA risks\\ndamaging the intelligence relationship and compromising\\ncurrent and future counterterrorism operations.\\n\\n Nonetheless, we also agree with the district court that a\\nsubset of information is not—at least in broad strokes—a\\nstate secret, namely: the fact that the CIA operated a\\ndetention facility in Poland in the early 2000s; information\\nabout the use of interrogation techniques and conditions of\\nconfinement in that detention facility; and details of Abu\\nZubaydah’s treatment there. These facts have been in the\\npublic eye for some years now, and we find no reason to\\nbelieve that Mitchell and Jessen testifying about these facts\\n“will expose . . . matters which, in the interest of national\\nsecurity, should not be divulged.” Reynolds, 345 U.S. at 10.\\nWe therefore reject the government’s blanket assertion of\\nstate secrets privilege over everything in Petitioners’\\ndiscovery request. See Fazaga, 1202 F.3d at 1228\\n(reiterating “caution[] that courts should work ‘to ensure that\\nthe state secrets privilege is asserted no more frequently and\\nsweepingly than necessary.’” (quoting Mohamed, 614 F.3d\\nat 1082)).\\n\\n C.\\n\\n At step three of the Reynolds analysis, we face the more\\ndifficult task of determining how the matter should proceed\\nin light of a successful claim of privilege. 17 Mohamed,\\n\\n 17\\n As the dissent notes, our main disagreement is at the third\\nReynolds step. Dissent at 30. The dissent’s concern about “walking\\n\\n HUSAYN V. UNITED STATES 23\\n\\n614 F.3d at 1082. We have held that, “whenever possible,\\nsensitive information must be disentangled from\\nnonsensitive information to allow for release of the latter.”\\nId. (original alterations omitted) (quoting Kasza, 133 F.3d\\nat 1166; Ellsberg, 709 F.2d at 57). There are three limited\\ncircumstances in which a successful claim of privilege\\nrequires outright termination of the case: (1) where the\\nplaintiff cannot prove the prima facie elements of the claim\\nwith nonprivileged evidence; (2) where the privilege\\ndeprives that defendant of information that would have\\notherwise given the defendant a valid defense to the claim;\\nor (3) where the claims and defenses might theoretically be\\nestablished without relying on the privileged evidence, but\\n“it may be impossible to proceed with the litigation\\nbecause—privileged evidence being inseparable from\\nnonprivileged information that will be necessary to the\\nclaims or defenses—litigating the case to a judgment on the\\nmerits would present an unacceptable risk of disclosing state\\nsecrets.” Id. at 1083.\\n\\n\\nclose” to “the line of actual state secrets” simply does not reflect the test\\nfrom Mohamed, which requires that nonsensitive information be released\\n“whenever possible.” Compare Dissent at 31, with Mohamed, 614 F.3d\\nat 1087–89. The dissent also asserts, without any support, that the\\nReynolds step two analysis must also take into consideration the fact that\\nthe information sought here is ultimately destined for a foreign tribunal\\nin Poland. Dissent at 34. A state secret, however, is a state secret in any\\nforum, domestic or foreign. The crux of the question is whether “there\\nis a reasonable danger that compulsion of the evidence will expose . . .\\nmatters which, in the interest of national security, should not be\\ndivulged.” Reynolds, 345 U.S. at 10. Moreover, the dissent’s analysis\\nof Reynolds fails to consider the district court’s authority to decide\\nwhether discovery should be provided to Petitioners in the first instance.\\nOnly then would Petitioners be able to provide any information to a\\nforeign tribunal.\\n\\n24 HUSAYN V. UNITED STATES\\n\\n The district court properly identified the third\\ncircumstance as the only one potentially applicable to a\\ndiscovery proceeding such as this case. We agree with\\nPetitioners, however, that it is not impossible to separate\\nsecret information, and that the district court was too quick\\nto quash the subpoenas and dismiss the case in its entirety. 18\\n\\n Unlike our prior cases, this case is a pure discovery\\nmatter where there are no claims to prove or defenses to\\nassert. 19 See Mohamed, 614 F.3d at 1075, 1093 (dismissing\\n\\n 18\\n The district court determined that the government’s\\nacknowledgment of the existence of a CIA facility in Poland would not\\nimplicate a state secret, a conclusion we need not address nor that we\\nnecessarily share. See supra at n.15. The district court nonetheless\\nproceeded to find dismissal appropriate under Reynolds step three\\nbecause, given that Petitioners made clear that they seek information\\nabout Poland, “the Government participating could be viewed as implicit\\nconfirmation of operation of the Program in Poland.” As mentioned\\nabove, we reject that determination. See supra at n.16. The district\\ncourt’s inconsistent and erroneous view of the effect of the government’s\\nparticipation in discovery was fundamental to the court’s conclusion that\\nthis case should be dismissed outright. The district court found that\\nimplicit government acknowledgment, although “seemingly innocuous,”\\nwas intertwined with state secrets. As we already noted, however,\\nnothing about the government’s participation in this case would\\nconstitute official acknowledgment, implicit or otherwise. Thus, the\\ndistrict court’s Reynolds step three conclusion was based entirely upon a\\nfaulty predicate.\\n 19\\n For this reason, the dissent’s reliance on Mohamed, Al-Haramain,\\nand Kasza is off-base. In those cases, plaintiffs sought information that\\nbelonged to what the courts deemed a “classified mosaic.” Kasza,\\n133 F.3d at 1166. The courts were able to reach that conclusion because\\nthey all underwent the process of reviewing the contested material to\\ndetermine that there was privileged information that could not be\\ndisentangled. See Mohamed, 614 F.3d at 1095; Al-Haramain, 507 F.3d\\nat 1203; Kasza, 133 F.3d at 1170. That was an essential predicate to the\\ncourts’ dismissal at step three of the Reynolds analysis. See, e.g.,\\n\\n HUSAYN V. UNITED STATES 25\\n\\nsuit against a U.S. corporation under the Alien Tort Statute\\nbased on its alleged involvement in the CIA extraordinary\\nrendition program); Al-Haramain, 507 F.3d at 1205\\n(dismissing lawsuit against the United States because\\nplaintiffs could not show standing without privileged\\ndocument); Kasza, 133 F.3d at 1162–63 (affirming dismissal\\nof citizen suits against the U.S. Air Force and Environmental\\nProtection agency). Section 1782 provides the district court\\ndiscretion to order an individual to give deposition testimony\\nor produce documents for use in a foreign proceeding\\nprovided it does not violate “any legally applicable\\nprivilege.” 28 U.S.C. § 1782(a). The government does not\\nchallenge the district court’s exercise of that discretion or\\napplication of the Intel factors. See supra at n.13. By the\\nterms of the statute, Petitioners can pursue any nonprivileged\\ndiscovery within the parameters set by the district court. 20\\n\\n\\nMohamed, 614 F.3d at 1087 (“We have thoroughly considered plaintiffs’\\nclaims, several possible defenses and the prospective path of this\\nlitigation. We also have carefully and skeptically reviewed the\\ngovernment’s classified submissions . . . We rely heavily on these\\nsubmissions, which describe the state secrets implicated here, the harm\\nto national security that the government believes would result from\\nexplicit or implicit disclosure and the reasons why, in the government’s\\nview, further litigation would risk that disclosure.”).\\n\\n Conversely, here, neither the district court nor we have had any\\noccasion to review the contested material to reach that threshold\\nquestion. Given the limited factual record, the dissent repeats the same\\nerror that the district court made by assuming the truth of the\\ngovernment’s assertions—that it would not be possible to disentangle the\\nprivileged from nonprivileged—without first invoking available\\ndiscovery tools as required by Mohamed. See 614 F.3d at 1089.\\n 20\\n We agree with Petitioners that, to the extent the district court\\ndenied discovery because disclosure of some information “would not\\nseem to aid the Polish investigation,” the district court erred by imposing\\n\\n26 HUSAYN V. UNITED STATES\\n\\n Moreover, the record suggests that Petitioners can obtain\\nnonprivileged information from Mitchell and Jessen. At the\\ndistrict court, Petitioners argued:\\n\\n [W]e are here in order to understand the story\\n around [Abu Zubaydah’s claims in Poland]\\n . . . You know, what was the narrative, what\\n sort of treatment was Mr. Zubaydah\\n subjected to, what was the feeding regime,\\n how was he held, what medical care was he\\n given, and of course, yes, we want to know if\\n locals were involved in that and to what\\n extent.\\n\\n ...\\n\\n Now, ideally, Your Honor, because we think\\n that these are not state secrets at this point in\\n time, we would prefer that Mitchell and\\n Jessen be permitted to testify as to the\\n identities of people and where it occurred.\\n But the prosecutor already knows where the\\n events occurred and my suspicion is he has a\\n good idea, although I’m not privy to the\\n specifics of his investigation, of who, you\\n know, who his targets are.\\n\\nEven if Mitchell and Jessen are restricted from disclosing\\nstate secrets such as the identities of individuals involved\\nwith the detention facility, the non-secret information in\\n\\n\\nan extraneous requirement upon Petitioners. Whether discoverable\\ninformation may or may not be “useful” in foreign proceedings has no\\nbearing on whether the information is privileged.\\n\\n HUSAYN V. UNITED STATES 27\\n\\ntheir possession could provide context to Polish prosecutors\\nor corroborate prosecutors’ independent investigations.\\n\\n More importantly, we conclude that the district court did\\nnot adequately attempt to disentangle the privileged from\\nnonprivileged information. 21 As we noted in Mohamed, “the\\nstandards for peremptory dismissal are very high and it is the\\ndistrict court’s role to use its fact-finding and other tools to\\nfull advantage before it concludes that the rare step of\\ndismissal is justified.” 614 F.3d at 1092–93; see also\\nReynolds, 345 U.S. at 11–12 (remanding for further\\nproceedings where plaintiffs potentially could pursue their\\ntort action without using material touching upon military\\nsecrets); cf. Heraeus, 633 F.3d at 597 (noting that once the\\ndistrict court grants a section 1782 application, “the ordinary\\ntools of discovery management . . . come into play”).\\n\\n Mitchell and Jessen have already provided nonprivileged\\ninformation similar to that sought here in the Salim lawsuit\\nbefore the district court, illustrating the viability of this\\ndisentanglement. Excerpts of those depositions were\\nincluded in the record and reflect how depositions could\\nproceed in this case, such as with the use of code names and\\n\\n\\n 21\\n See supra at n.18. This is an essential point that the dissent\\noverlooks: where Reynolds privilege is successfully asserted at steps one\\nand two, the default at step three is nonetheless to “whenever possible\\n. . . disentangle[] [the sensitive information] from nonsensitive\\ninformation to allow for the release of the latter.” Kasza, 133 F.3d\\nat 1166 (quoting Ellsberg, 709 F.2d at 57); see also Mohamed, 614 F.3d\\nat 1089 (“Dismissal at the pleading stage under Reynolds is a drastic\\nresult and should not be readily granted.”). The dissent would flip the\\ndefault to dismissal, unless Petitioners met a newly imposed burden to\\ndemonstrate a specific plan for disentanglement.\\n\\n28 HUSAYN V. UNITED STATES\\n\\npseudonyms, where appropriate. 22 While this no doubt\\nimposes a burden on the government to participate in\\ndiscovery and object, where appropriate, 23 we have stressed\\nthat cases should be dismissed only “in the[] rare\\ncircumstances” that the district court is not able to employ\\nprotective procedures to prevent disclosure of state secrets.\\nMohamed, 614 F.3d at 1089. We are not convinced that\\nthose rare circumstances exist here. On remand, the district\\ncourt may use the Pompeo declarations as a guide while\\nemploying tools such as in camera review, protective orders,\\nand restrictions on testimony, see id., in tailoring the scope\\nof Mitchell’s and Jessen’s deposition and the documents\\nthey may be required to produce.\\n\\n IV.\\n\\n We have grappled with the state secrets privilege on only\\nrare occasions. Given that the district court had only Kasza,\\nAl-Haramain and Mohamed as guides in conducting its\\nReynolds analysis, we can understand why the district court\\nwas so quick to dismiss the proceedings at the third step. The\\ncourt’s hasty dismissal, however, overlooked our “special\\nburden to assure . . . that an appropriate balance is struck\\nbetween protecting national security matters and preserving\\n\\n\\n\\n 22\\n The dissent attempts to distinguish the situation in Salim and faults\\nPetitioners for not presenting a viable disentanglement plan to the district\\ncourt. Dissent at 32–33. Again, this disregards the fact that the district\\ncourt never engaged in any disentanglement process or assessed what\\nprotective measures could be utilized to accomplish disentanglement.\\n 23\\n Eight U.S. government attorneys or experts were present at the\\ndepositions of Mitchell and Jessen in Salim to ensure that nothing\\nconfidential or privileged would be disclosed.\\n\\n HUSAYN V. UNITED STATES 29\\n\\nan open court system,” Mohamed, 614 F.3d at 1081 (quoting\\nAl-Haramain, 507 F.3d at 1203).\\n\\n Our holding is a limited one: if, upon reviewing disputed\\ndiscovery and meaningfully engaging the panoply of tools at\\nits disposal, the district court determines that it is not\\npossible to disentangle the privileged from nonprivileged, it\\nmay again conclude that dismissal is appropriate at step three\\nof the Reynolds analysis. However, the district court may\\nnot skip directly to dismissal without doing more. “[A]s\\njudges, we strive to honor all of these principles [of justice,\\ntransparency, accountability and national security],” and\\nwhile “there are times when exceptional circumstances\\ncreate an irreconcilable conflict between them,” id. at\\n1073—on the limited record before us, this is not one of\\nthose times.\\n\\n The world has moved on since we discussed the state\\nsecrets privilege in Mohamed. In the near decade that has\\npassed, we have engaged in a public debate over the CIA’s\\nconduct during the early years of the war on terror. The\\ndistrict court correctly recognized that the state secrets\\nprivilege did not cover all the discovery sought by\\nPetitioners, but failed to recognize that complete dismissal\\nbased on the state secrets privilege is reserved only for “rare\\ncases.” Id. at 1092.\\n\\n REVERSED and REMANDED for further\\nproceedings.\\n\\n30 HUSAYN V. UNITED STATES\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4439287/\", \"author_raw\": \"PAEZ, Circuit Judge:\"}, {\"author\": \"GOULD, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"GOULD, Circuit Judge, dissenting:\\n\\n I respectfully dissent. The majority jeopardizes critical\\nnational security concerns in the hope that the district court\\nwill be able to segregate secret information from public\\ninformation that could be discovered. In this case, I would\\ndefer to the view of then-CIA Director and now Secretary of\\nState Michael Pompeo that the disclosure of secret\\ninformation in this proceeding “reasonably could be\\nexpected to cause serious, and in many instances,\\nexceptionally grave damage to U.S. national security.”\\n\\n I\\n\\n A major source of my disagreement with the majority\\nconcerns Section III.C of the opinion, with its analysis of\\nstep three of the United States v. Reynolds test. The majority\\nand I agree with the district court that information about\\nforeign nationals cooperating with the CIA, “operational\\ndetails about the facility,” and details about Poland’s\\nintelligence cooperation with the CIA are subject to the state\\nsecrets privilege. We part ways with respect to how to\\nproceed with carving this kind of information out of\\nPetitioners’ broad discovery requests. Our circuit has\\npreviously contemplated a situation in which, in the face of\\nthe government’s successful claim of state secrets privilege,\\n“it may be impossible to proceed with the litigation\\nbecause—privileged evidence being inseparable from\\nnonprivileged information . . .—litigating the case . . . would\\npresent an unacceptable risk of disclosing state secrets.”\\nMohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1083\\n(9th Cir. 2010) (en banc). I would hold that this is such a\\nproceeding and affirm the district court.\\n\\n HUSAYN V. UNITED STATES 31\\n\\n I also note that, while step three is a major concern in\\ndissent, I am not in a position as an Article III judge to make\\na conclusion that it is agreed that Abu Zubaydah was\\ndetained and tortured in Poland. Doubtless there is much\\nmedia comment and some reasoning of the European Court\\nof Human Rights that looked at this matter suggesting that\\nconclusion. But while the District Court findings suggest\\nthat there was some facility in Poland, I do not read the\\nDistrict Court findings to acknowledge that Abu Zubaydah\\nwas in fact tortured, and the definition of torture was highly\\ndisputed in our country and not ultimately decided by the\\nU.S. Supreme Court in the context of this case. For purposes\\nof my dissenting analysis, it is sufficient if at step three of\\nthe Reynolds’ test it appears that walking close to the line of\\nactual state secrets may result in someone overstepping that\\nline to the detriment of the United States. I would not need\\nto go further than that to accept the position of the CIA in its\\nintervenor role in this case that the discovery should not\\nproceed.\\n\\n The majority remands this case so that Petitioners can\\npursue details about Abu Zubaydah’s treatment that it\\nbelieves are no longer secret, tasking the district court with\\ndisentangling that information from closely related topics\\nthat are indisputably subject to the state secrets privilege.\\nThe majority opinion characterizes this remaining\\ninformation as information that Petitioners could provide as\\npart of a “context to Polish prosecutors” under § 1782.\\nHowever, our circuit has recognized that even otherwise\\ninnocuous information that provides a more coherent and\\ncomplete narrative should not be produced where it may risk\\nexposing a broader picture. See Kasza v. Browner, 133 F.3d\\n1159, 1166 (9th Cir. 1998) (holding that “if seemingly\\ninnocuous information is part of a classified mosaic, the state\\nsecrets privilege may be invoked to bar its disclosure and the\\n\\n32 HUSAYN V. UNITED STATES\\n\\ncourt cannot order the government to disentangle this\\ninformation from other classified information”). This is the\\nrisk presented by the residual information that Petitioners\\nwill seek on remand. In combination with the circumstances\\nof the proceeding and facts already made public, an attempt\\nto disentangle the details of Abu Zubaydah’s treatment in\\nPoland could expose a broader mosaic of clandestine\\n“intelligence activities, sources, or methods.” Mohamed,\\n614 F.3d at 1086.\\n\\n The majority recognizes that Petitioners’ discovery\\nrequests could potentially pose a “risk of disclosing state\\nsecrets” such as details about the CIA’s involvement with\\nlocations, individuals, and governments overseas because\\nthis kind of information may be closely tied to nonprivileged\\ninformation. Id. at 1083. The majority responds to this\\nconcern by advising that “depositions could proceed in this\\ncase, with the use of code names and pseudonyms” in order\\nto protect privileged details of CIA operations. Code names\\nand pseudonyms had been used in a prior lawsuit to enable\\nMitchell and Jessen to be deposed without revealing\\nsensitive information about a CIA black site.\\n\\n But the district court judge in this case, who also heard\\nthat prior lawsuit, understood exactly why those tools would\\nbe ineffective in this circumstance. Because the entire\\npremise of the proceeding and the basis for our jurisdiction\\nconcerns Polish prosecutorial efforts, the district court was\\ncorrect to reason that “[a]llowing the matter to proceed with\\na code word, such as ‘detention site blue’ to replace Poland\\nseems disingenuous.” As the government argued,\\n“regardless of what pseudonyms or fictitious words\\n[Petitioners] would propose to use as a substitute, there’s no\\nescaping the fact that everything [they are] asking would\\nrelate to allegations about things that occurred in Poland,\\n\\n HUSAYN V. UNITED STATES 33\\n\\npeople that were there, [and] activities that allegedly\\noccurred there.” Like the approach of the district court in\\nAl-Haramain, the majority’s instruction to use code names\\nopens the door to secret information being “revealed through\\nreconstruct[ion]” even if it is not directly produced. Al-\\nHaramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1204\\n(9th Cir. 2007). The Al-Haramain court rejected this sort of\\napproach as the “worst of both world[s].” Id. Petitioners\\nhave not demonstrated that the use of code words could\\nmeaningfully restrict the information ultimately made public\\nthrough these discovery requests, and the majority should\\nnot, therefore, suggest that national security would be\\nprotected by their use.\\n\\n In brief, although the majority is right to emphasize our\\n“special burden to assure . . . that an appropriate balance is\\nstruck between protecting national security matters and\\npreserving an open court system,” the majority does not\\nrecognize some of the ways in which this particular case\\npresents unique challenges for step three of the Reynolds\\nanalysis. Mohamed, 614 F.3d at 1081. Because of the\\ncircumstances presented by a § 1782 proceeding, the\\ninformation Petitioners seek is inextricably linked with\\nparticular intelligence missions and particular foreign\\nintelligence contacts. Details about “the use of interrogation\\ntechniques and conditions of confinement in that detention\\nfacility . . . [and] Abu Zubaydah’s treatment there” will\\ninevitably be placed in the context of a Polish prosecution\\nseeking to discover aspects of the CIA’s presence in Poland\\nand any foreign nationals working with the CIA there, topics\\nthe majority recognizes to be privileged. Without a more\\nspecific and plausible plan for obtaining that nonprivileged\\ninformation and not risking the exposure of a broader picture\\nof national security material, I would defer to then-Director\\nPompeo’s assessment of the risks presented in allowing the\\n\\n34 HUSAYN V. UNITED STATES\\n\\ndiscovery proceeding to go forward. For that reason, I must\\nrespectfully dissent from the majority’s application of step\\nthree of the United States v. Reynolds test. These concerns\\napply to any case in which the Reynolds test is applied and\\nstep three of that test must be addressed.\\n\\n II\\n\\n Also, there are aspects of this case peculiar to the context\\nof § 1782 and consideration of the Reynolds test when the\\nsought information will be produced for a foreign country\\nunder § 1782. I find it very troubling that the majority’s\\nanalysis of the extent of the Reynolds privilege in section\\nIII.B of the opinion does not acknowledge and evaluate the\\nconsequences of the fact that the information sought in a\\ndiscovery proceeding here under § 1782 is ultimately\\ndestined for a foreign tribunal in Poland. Determining the\\nextent of the state secrets privilege is a task that always aims\\nat assuring “that an appropriate balance is struck between\\nprotecting national security matters and preserving an open\\ncourt system.” Mohamed v. Jeppesen Dataplan, Inc.,\\n614 F.3d 1070, 1081 (9th Cir. 2010) (en banc) (citing Al-\\nHaramain Islamic Found., Inc. v. Bush, 507 F.3d 1190, 1203\\n(9th Cir. 2007)). Reynolds itself contemplated balancing the\\nlegitimate rights of survivors to sue about the deaths of their\\nloved ones against concerns of potential harm from\\ndisclosing military secrets. See United States v. Reynolds,\\n345 U.S. 1, 9 (1953) (holding that the state secrets privilege\\nis guided by a “formula of compromise”). But how is that\\nbalance to be struck here where the information is sought for\\npotential prosecutions in Poland of Polish citizens who may\\nhave worked in Poland with the Respondents?\\n\\n I would hold that the Reynolds balance should recognize\\nthat information produced in domestic proceedings remains\\nunder the supervision of the United States court system in a\\n\\n HUSAYN V. UNITED STATES 35\\n\\nway that information produced in discovery for overseas\\ntribunals does not. Reynolds makes clear that it is our\\ndomestic national security concerns that create a privilege\\nagainst disclosure of information that may harm our country.\\nId. at 10. This country’s judicial system stands to gain little\\nfrom providing information to Polish prosecutors, while it is\\nthis country’s national security that is being risked.\\nAlthough it is true that § 1782 authorizes discovery for the\\nbenefit of foreign proceedings, it is also true that the\\nReynolds privilege requires a balancing test that can take into\\naccount that the sought discovery will be shipped overseas\\nfor the benefit of another country’s judicial system, and at\\nthat point, totally out of control of a domestic court.\\n\\n III\\n\\n For the reasons set forth above, I respectfully dissent.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4439287/\", \"author_raw\": \"GOULD, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"RONALD M GOULD"},"judge2":{"kind":"string","value":"RICHARD A PAEZ"},"judge3":{"kind":"string","value":"DEAN D PREGERSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4662034/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Zayn Al-Abidin Husayn v. United States\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-18\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n ZAYN AL-ABIDIN MUHAMMAD No. 18-35218\n HUSAYN; JOSEPH MARGULIES,\n Petitioners-Appellants, D.C. No.\n 2:17-cv-00171-\n v. JLQ\n\n JAMES ELMER MITCHELL; JOHN\n JESSEN, OPINION\n Respondents,\n\n UNITED STATES OF AMERICA,\n Intervenor-Appellee.\n\n Appeal from the United States District Court\n for the Eastern District of Washington\n Justin L. Quackenbush, District Judge, Presiding\n\n Argued and Submitted March 5, 2019\n Seattle, Washington\n\n Filed September 18, 2019\n\n Before: Ronald M. Gould and Richard A. Paez, Circuit\n Judges, and Dean D. Pregerson, * District Judge.\n\n\n\n *\n The Honorable Dean D. Pregerson, United States District Judge\nfor the Central District of California, sitting by designation.\n\n2 HUSAYN V. UNITED STATES\n\n Opinion by Judge Paez;\n Dissent by Judge Gould\n\n\n SUMMARY **\n\n\n State Secrets Privilege / Subpoena\n\n The panel reversed the district court’s order quashing a\nsubpoena sought by Abu Zubaydah, who is currently held at\nthe U.S. detention facility in the Guantanamo Bay Naval\nBase in Cuba, and his attorney (“Petitioners”), and\ndismissing the case in its entirety.\n\n Petitioners filed an ex parte application for discovery\npursuant to 28 U.S.C. § 1782, and sought an order to\nsubpoena James Elmer Mitchell and John Jessen for their\ndepositions for use in an ongoing criminal investigation in\nPoland about the torture to which Abu Zubaydah was\nsubjected in that country. The district court originally\ngranted the discovery application, but subsequently quashed\nthe subpoenas after the U.S. government intervened and\nasserted the state secrets privilege.\n\n The panel agreed with the district court that certain\ninformation requested was not privileged because it was not\na state secret that would pose an exceptionally grave risk to\nnational security. The panel agreed that the government’s\nassertion of the state secrets privilege was valid over much\nof the information requested. The panel concluded,\nhowever, that the district court erred in quashing the\n\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\n HUSAYN V. UNITED STATES 3\n\nsubpoenas in toto rather than attempting to disentangle\nnonprivileged from privileged information. The panel\nremanded for further proceedings.\n\n Judge Gould dissented, and would affirm the district\ncourt. Judge Gould would defer to the view of then-CIA\nDirector and current Secretary of State Michael Pompeo that\nthe disclosure of secret information in this proceeding\n“reasonably could be expected to cause serious, and in many\ninstances, exceptionally grave damage to U.S. national\nsecurity.”\n\n\n COUNSEL\n\nDavid F. Klein (argued) and John Chamberlain, Pillsbury\nWinthrop Shaw Pittman LLP, Washington, D.C.; Jerry\nMoberg, Jerry Moberg & Associates, Ephrata, Washington;\nfor Petitioners-Appellants.\n\nH. Thomas Byron III (argued), Appellate Staff; Joseph H.\nHarrington, United States Attorney; Civil Division, United\nStates Department of Justice, Washington, D.C.; for\nIntervenor-Appellee.\n\n4 HUSAYN V. UNITED STATES\n\n OPINION\n\nPAEZ, Circuit Judge:\n\n Zayn al-Abidin Muhammad Husayn (“Abu Zubaydah”) 1\nis currently held at the U.S. detention facility in the\nGuantanamo Bay Naval Base in Cuba. Abu Zubaydah was\nformerly detained as part of the Central Intelligence Agency\n(“CIA”)’s detention and interrogation program, also\ncommonly known as the post-9/11 “enhanced interrogation”\nor torture program. In 2017, Abu Zubaydah and his attorney,\nJoseph Margulies (collectively “Petitioners”), filed an ex\nparte application for discovery pursuant to 28 U.S.C. § 1782,\nwhich permits certain domestic discovery for use in foreign\nproceedings. They sought an order to subpoena James Elmer\nMitchell and John Jessen for their depositions for use in an\nongoing criminal investigation in Poland about the torture to\nwhich Abu Zubaydah was subjected in that country. The\ndistrict court originally granted the discovery application,\nbut subsequently quashed the subpoenas after the U.S.\ngovernment intervened and asserted the state secrets\nprivilege.\n\n The Supreme Court has long recognized that in\nexceptional circumstances, courts must act in the interest of\nthe country’s national security to prevent the disclosure of\nstate secrets by excluding privileged evidence from the case\nand, in some instances, dismissing the case entirely. See\nTotten v. United States, 92 U.S. 105 (1875); see also United\nStates v. Reynolds, 345 U.S. 1 (1953). This appeal presents\na narrow but important question: whether the district court\n\n 1\n Abu Zubaydah’s birth name was Zayn al-Abidin Muhammad\nHusayn but he is known as Abu Zubaydah in litigation and public\nrecords.\n\n HUSAYN V. UNITED STATES 5\n\nerred in quashing the subpoenas after concluding that not all\nthe discovery sought was subject to the state secrets\nprivilege.\n\n We have jurisdiction pursuant to 28 U.S.C. § 1291, and\nwe reverse. We agree with the district court that certain\ninformation requested is not privileged because it is not a\nstate secret that would pose an exceptionally grave risk to\nnational security. We also agree that the government’s\nassertion of the state secrets privilege is valid over much of\nthe information requested. We conclude, however, that the\ndistrict court erred in quashing the subpoenas in toto rather\nthan attempting to disentangle nonprivileged from\nprivileged information.\n\n We have “emphasize[d] that it should be a rare case\nwhen the state secrets doctrine leads to dismissal at the outset\nof a case.” Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d\n1070, 1092 (2010) (en banc); see also Reynolds, 345 U.S.\nat 9–10 (noting that “[j]udicial control over the evidence in\na case cannot be abdicated to the caprice of executive\nofficers”). Here, the underlying proceeding is a limited\ndiscovery request that can be managed by the district court,\nwhich is obligated “to use its fact-finding and other tools to\nfull advantage before it concludes that the rare step of\ndismissal is justified.” Mohamed, 614 F.3d at 1093. We\ntherefore reverse the district court’s judgment dismissing\nPetitioners’ section 1782 application for discovery and\nremand for further proceedings. 2\n\n 2\n Because the district court granted the motion to quash based on the\nstate secrets privilege, it did not address the government’s alternative\narguments under the Central Intelligence Agency Act, 50 U.S.C. § 3507,\nand the National Security Act, 50 U.S.C. § 3024(i). If relevant, the\ndistrict court may consider these arguments on remand.\n\n6 HUSAYN V. UNITED STATES\n\n I.\n\n A.\n\n In late March 2002, Pakistani government authorities,\nworking with the CIA, captured Abu Zubaydah in Pakistan.\nAt the time, Abu Zubaydah was thought to be a high-level\nmember of Al-Qa’ida 3 with detailed knowledge of terrorist\nplans. A 2014 report by the Senate Select Committee on\nIntelligence Study on the CIA’s detention and interrogation\nprogram (“Senate Select Committee Report”) later revealed\nthis characterization to be erroneous.\n\n In the first four years of his detention, Abu Zubaydah\nwas held as an enemy combatant and transferred to various\nsecret CIA “dark sites” for interrogation. Journalists, non-\ngovernmental organizations, and Polish government\nofficials have widely reported that one of those sites was in\nPoland. In 2015, the European Court on Human Rights\n(“ECHR”) found that Abu Zubaydah was detained at a CIA\nsite in Poland from December 2002 to September 2003.\n\n Numerous sources also confirm that Abu Zubaydah was\nsubjected to so-called “enhanced interrogation” techniques\nwhile detained at these CIA sites. These techniques were\nproposed and developed by Mitchell and Jessen, 4 who at that\n\n 3\n For consistency, we employ the spelling used by the Senate Select\nCommittee Report in this opinion.\n\n 4\n Mitchell and Jessen are referred to as “SWIGERT” and\n“DUNBAR” in the Senate Select Committee Report, and have admitted\nto their involvement with the CIA program in a separate lawsuit, Salim\nv. Mitchell, No. 2:15-cv-286-JLQ, Answer to Complaint and Affirmative\nDefenses (E.D. Wash. June 16, 2016) (“Salim”).\n\n HUSAYN V. UNITED STATES 7\n\npoint were independent contractors for the CIA. They\nworked on “novel interrogation methods” intended to break\ndown Abu Zubaydah’s resistance, including the use of\ninsects—to take advantage of his entomophobia—and mock\nburial. The details of Abu Zubaydah’s treatment during this\nperiod are uncontroverted: he was persistently and\nrepeatedly waterboarded; he spent hundreds of hours in a\n“confinement box,” described as coffin-sized; he was\nsubjected to various combinations of interrogation\ntechniques including “walling, 5 attention grasps, 6 slapping,\nfacial hold, stress positions, cramped confinement, white\nnoise and sleep deprivation”; his food intake was\nmanipulated to minimize the potential of vomiting during\nwaterboarding. To use colloquial terms, as was suggested\nby the Senate Select Committee Report, Abu Zubaydah was\ntortured.\n\n The ECHR found that some of this torture took place in\nPoland. Mitchell and Jessen traveled to the CIA black site\nthere at least twice to supervise the interrogations.\nDeclassified CIA cables confirm Mitchell’s and Jessen’s\ninvolvement in Abu Zubaydah’s torture. Abu Zubaydah was\neventually transferred to a succession of facilities outside of\nPoland before arriving in Guantanamo Bay, where he\nremains today. Abu Zubaydah has allegedly sustained\npermanent brain damage and physical impairments,\n\n 5\n According to a declassified U.S. Department of Justice Office of\nLegal Counsel (“OLC”) memo, “walling” refers to when an individual\nis firmly pushed against a flexible false wall, hitting the shoulder blades,\nto create the sensation of physical impact that is worse than it is.\n\n 6\n The same OLC memo describes “attention grasp” to consist of\ngrasping an individual with both hands, one hand on each side of the\ncollar opening, in a controlled and quick motion, drawing the individual\ntoward the interrogator.\n\n8 HUSAYN V. UNITED STATES\n\nincluding over 300 seizures in the span of three years and the\nloss of his left eye.\n\n In 2010, Abu Zubaydah’s attorneys and certain\nhumanitarian organizations filed a criminal complaint in\nPoland on his behalf seeking to hold Polish officials\naccountable for their complicity in his unlawful detention\nand torture. That investigation closed without any\nprosecutions or convictions. In 2013, Abu Zubaydah’s\nattorneys filed an application with the ECHR alleging that\nPoland had violated the Convention for the Protection of\nHuman Rights and Fundamental Rights and failed to\nundertake a proper investigation. This resulted in the\nECHR’s decision in Case of Husayn (Abu Zubaydah) v.\nPoland, No. 7511/13, Eur. Ct. H.R. (2015). The court found\n“beyond reasonable doubt” that Abu Zubaydah was detained\nin Poland, that “the treatment to which [he] was subjected by\nthe CIA during his detention in Poland . . . amount[ed] to\ntorture,” and that Poland had failed to abide by its\nobligations under the European Convention on Human\nRights. The court accordingly awarded damages to Abu\nZubaydah.\n\n After the ECHR issued its decision—finding, among\nother things, that Poland failed to sufficiently investigate\nhuman rights violations related to Abu Zubaydah’s treatment\nin Poland—Polish authorities reopened their investigations\ninto the violations, focusing on the culpability of Polish\ncitizens and government officials in Abu Zubaydah’s\ndetention. The Polish government requested evidence from\nthe United States through the Mutual Legal Assistance\nTreaty (“MLAT”) between the two countries. The United\nStates denied the Polish government’s request.\nSubsequently, Polish prosecutors followed up with Abu\n\n HUSAYN V. UNITED STATES 9\n\nZubaydah’s lawyers to ask for assistance with obtaining\nevidence necessary to pursue the prosecution. 7\n\n B.\n\n Abu Zubaydah and his attorney, Margulies, filed an ex\nparte application for discovery in the Eastern District of\nWashington pursuant to 28 U.S.C. § 1782. Section 1782\nprovides that “[t]he district court of the district in which a\nperson resides or is found may order him to give his\ntestimony or statement or to produce a document or other\nthing for use in a proceeding in a foreign or international\ntribunal.” Abu Zubaydah and his attorney sought a\ndiscovery order subpoenaing Mitchell and Jessen to produce\ndocuments and give deposition testimony for use in the\nongoing criminal investigation in Poland.8 They requested\nthat Mitchell and Jessen provide, among other related items,\ndocuments concerning the detention facility in Poland, the\nidentities of Polish officials involved in the establishment or\noperation of the detention facility, the use of interrogation\ntechniques, conditions of confinement and torture of those\nbeing held, and any contracts made between Polish\ngovernment officials or private persons residing in Poland\nand U.S. personnel for use of the property upon which the\ndetention facilities was located.\n\n\n 7\n Under Polish law, victims of crimes under investigation, like Abu\nZubaydah, have a right to submit evidence through counsel to aid in the\nPolish Prosecutor’s Office’s investigation.\n\n 8\n Mitchell and Jessen co-founded Mitchell, Jessen & Associates,\nwhich is headquartered in Spokane, Washington, and Jessen resides in\nSpokane. Hence, they both “reside[] or [are] found” in the relevant\ndistrict. 28 U.S.C. § 1782.\n\n10 HUSAYN V. UNITED STATES\n\n The United States submitted a “Statement of Interest”\narguing that the district court should not grant Abu\nZubaydah’s application based on the four factors outlined in\nIntel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241\n(2004). 9 The district court evaluated the section 1782\napplication under the Intel factors and found that the Intel\nfactors weighed in favor of granting the application for\ndiscovery. It noted that the government’s concerns\nregarding privilege and classification of documents were\nhypothetical and could be raised at a later point. The district\ncourt granted the application and Petitioners served the\nsubpoenas on Mitchell and Jessen.\n\n\n\n\n 9\n The four Intel factors are: (1) whether the person from whom\ndiscovery is sought is a participant in the foreign proceeding; (2) the\nnature of the foreign tribunal, the character of the proceedings underway\nabroad and the receptivity of the foreign government to U.S. federal-\ncourt assistance; (3) whether the discovery request is an attempt to\ncircumvent foreign proof-gathering restrictions or other policies of a\nforeign country or the United States; and, (4) whether the discovery\nrequest is unduly intrusive or burdensome. Intel, 542 U.S. at 264–65.\nThe third Intel factor allows the court to consider the potential for abuse\nof discovery for use in the foreign court. Id. at 265. “Once the court has\ndetermined that such abuses are unlikely,” and grants the section 1782\napplication, “the ordinary tools of discovery management, including\n[Federal Rule of Civil Procedure] 26, come into play; and with\nobjections based on the fact that discovery is being sought for use in a\nforeign court cleared away, section 1782 drops out.” Heraeus Kulzer,\nGmbH v. Biomet, Inc., 633 F.3d 591, 597 (7th Cir. 2011) (citing\nEcuadorian Plaintiffs v. Chevron Corp., 619 F.3d 373, 377–78 (5th Cir.\n2010); Weber v. Finker, 554 F.3d 1379, 1384–85 (11th Cir. 2009)). In\nother words, once a section 1782 application is granted, the ordinary\nrules of civil procedure relating to discovery shift into place.\n\n HUSAYN V. UNITED STATES 11\n\n After Mitchell and Jessen entered their appearance in\ndistrict court, 10 the U.S. government filed a motion to\nintervene and a motion to quash the subpoenas. In support\nof the latter motion, the government made three arguments.\nFirst, it argued that the district court lacked jurisdiction over\nthe case under 28 U.S.C. § 2241(e)(2), which strips\njurisdiction for courts to hear or consider any nonhabeas\naction against the United States or its agents relating to any\naspect of the detention, transfer, treatment, trial or conditions\nof confinement of a designated enemy combatant outside the\nprovisions of the Detainee Treatment Act of 2005, 10 U.S.C.\n§ 801. Second, the government argued that the discovery\nsought is protected by the state secrets privilege, relying on\ntwo declarations from then-CIA Director, Michael\nPompeo. 11 Third, it argued that both the National Security\nAct of 1947 and the Central Intelligence Agency Act of 1949\nprohibit the discovery sought.\n\n The district court granted the government’s motion to\nintervene and motion to quash the subpoenas. The court\nrejected the government’s first argument regarding the lack\nof jurisdiction, noting that the government offered nothing\nto establish an agency relationship between Mitchell and\nJessen and the United States. The court then applied the\nthree-part test outlined in Mohamed, 614 F.3d at 1080, to\nevaluate the government’s assertion of the state secrets\n\n\n\n 10\n Neither Mitchell nor Jessen opposed the discovery requested in\nthis case and have taken no position on the issues in this appeal.\n 11\n Pompeo submitted a declaration addressing Petitioners’ section\n1782 application and incorporated a prior declaration that he submitted\nin the Salim lawsuit.\n\n12 HUSAYN V. UNITED STATES\n\nprivilege. 12 First, it found that the government had followed\nthe procedural requirements for invoking the privilege.\nSecond, it concluded that the fact of the CIA’s involvement\nwith a facility in Poland was not a state secret that posed an\nexceptionally grave risk to national security. The court\nagreed, however, that other information, such as the roles\nand identities of Polish citizens involved with the CIA site,\nis covered by the state secrets privilege. Third, the court\nconcluded that “[m]eaningful discovery cannot proceed in\nthis matter without disclosing information that the\nGovernment contends is subject to the state secrets\nprivilege,” and thus it granted the motion to quash the\nsubpoenas in their entirety and entered judgment. Abu\nZubaydah and Margulies timely appealed.\n\n II.\n\n “We review de novo the interpretation and application of\nthe state secrets doctrine and review for clear error the\ndistrict court’s underlying factual findings.” Mohamed,\n614 F.3d at 1077 (citing Al-Haramain Islamic Found., Inc.\nv. Bush, 507 F.3d 1190, 1196 (9th Cir. 2007)).\n\n\n\n\n 12\n Although the state secrets doctrine encompasses a complete bar\nunder Totten, 92 U.S. at 107, and an evidentiary privilege under\nReynolds, 345 U.S. at 7–8, the district court correctly concluded that the\nTotten bar does not apply in this case because the very subject matter of\nthe action—the CIA’s enhanced interrogation program—is not a state\nsecret. See Mohamed, 614 F.3d at 1085–89 (applying Reynolds privilege\nanalysis); see also El-Masri v. United States, 479 F.3d 296, 307–10 (4th\nCir. 2007) (same).\n\n HUSAYN V. UNITED STATES 13\n\n III.\n\n Petitioners argue that the district court erred in quashing\nthe subpoenas in their entirety based on the state secrets\nprivilege. The parties essentially disagree over the proper\nanalysis under steps two and three under Reynolds. 13\n\n A.\n\n Before reviewing the district court’s decision, we\nprovide some brief background on the state secrets privilege.\nThe privilege derives from a common law doctrine that\n“encompasses a ‘privilege against revealing military [or\nstate] secrets, a privilege which is well established in the law\nof evidence.’” Mohamed, 614 F.3d at 1079 (alterations in\noriginal) (quoting Reynolds, 345 U.S. at 6–7). “The\nprivilege is not to be lightly invoked.” Al-Haramain,\n507 F.3d at 1196. “A successful assertion of privilege under\nReynolds will remove the privileged evidence from the\nlitigation.” Mohamed, 614 F.3d at 1079. “Unlike the Totten\nbar, a valid claim of privilege under Reynolds does not\nautomatically require dismissal of the case.” Id. Assertion\nof the state secrets privilege “will require dismissal [where]\nit . . . become[s] apparent during the Reynolds analysis that\n\n 13\n We are not persuaded by the government’s alternative argument\nthat the district court’s decision can be affirmed as an exercise of\ndiscretion to deny section 1782 discovery requests. First, the district\ncourt exercised its discretion to grant the section 1782 application after\napplying the Intel factors. That order is not on appeal. Moreover, the\norder that was appealed was not a discretionary one. The district court\nconcluded that it was required by the state secrets privilege to quash the\nsubpoenas. The government’s attempt to challenge the district court’s\nfirst order seeks to avoid the discretion expressly given to district courts\nover section 1782 applications. See Intel, 542 U.S. at 255–61 (rejecting\ncategorical limitations on section 1782’s reach based on the statute’s text\nand legislative history giving discretion to the district court).\n\n14 HUSAYN V. UNITED STATES\n\nthe case cannot proceed without privileged evidence, or that\nlitigating the case to a judgment on the merits would present\nan unacceptable risk of disclosing state secrets.” Id.\n\n The Supreme Court identified and applied the state\nsecrets privilege in Reynolds, where three estates filed\nwrongful-death suits against the government following the\nuntimely deaths of three civilian observers during a test\nflight of a B-29 bomber. 345 U.S. at 3. In discovery,\nplaintiffs sought production of the Air Force’s official\naccident investigation report and the statements of three\nsurviving crew members. Id. The Air Force refused to\nproduce the materials, citing the need to protect national\nsecurity and military secrets because the aircraft and\npersonnel on board “were engaged in a highly secret\nmission,” id. at 4, and the material could reveal information\nabout the “development of highly technical and secret\nmilitary equipment,” id. at 5. The district court ordered the\ngovernment to produce the documents in camera so that the\ncourt could determine whether they contained privileged\nmaterial. When the government refused, the district court\nimposed sanctions and ruled against the government on the\nissue of negligence. Id. The Court of Appeals affirmed. Id.\n\n The Supreme Court reversed and sustained the\ngovernment’s assertion of privilege after concluding, “from\nall the circumstances of the case, that there [wa]s a\nreasonable danger that compulsion of the evidence will\nexpose military matters which, in the interest of national\nsecurity, should not be divulged.” Id. at 10. In reaching this\nconclusion, the Court noted “that this is a time of vigorous\npreparation for national defense” and that “air power is one\nof the most potent weapons in [the United States’] scheme\nof defense.” Id. Rather than dismissing the case, however,\nthe Court noted that it could be possible for the plaintiffs “to\n\n HUSAYN V. UNITED STATES 15\n\nadduce the essential facts as to causation [in support of their\ntort claims] without resort to material touching upon military\nsecrets,” and remanded for further proceedings. Id. at 11–\n12.\n\n Based on Reynolds, we identified three steps for\nanalyzing claims of the state secrets privilege:\n\n First, we must ascertain that the procedural\n requirements for invoking the state secrets\n privilege have been satisfied. Second, we\n must make an independent determination\n whether the information is privileged.\n Finally, the ultimate question to be resolved\n is how the matter should proceed in light of\n the successful privilege claim.\n\nMohamed, 614 F.3d at 1080 (internal alterations and\nquotation marks omitted) (quoting Al-Haramain, 507 F.3d\nat 1202). The parties do not contest that the government\nfulfilled the first requirement by filing the declarations from\nthen-CIA Director Pompeo, who formally asserted the state\nsecrets privilege with specificity in this case. See Reynolds,\n245 U.S. at 7–8 (“There must be a formal claim of privilege,\nlodged by the head of the department which has control over\nthe matter, after actual personal consideration by that\nofficer.”). We therefore proceed to the second and third\nsteps of the Reynolds test.\n\n B.\n\n “When the privilege has been properly invoked, ‘we\nmust make an independent determination whether the\ninformation is privileged.’” Mohamed, 614 F.3d at 1081\n(quoting Al-Haramain, 507 F.3d at 1202). “The court must\nsustain a claim of privilege when it is satisfied, ‘from all the\n\n16 HUSAYN V. UNITED STATES\n\ncircumstances of the case, that there is a reasonable danger\nthat compulsion of the evidence will expose . . . matters\nwhich, in the interest of national security, should not be\ndivulged.’” Id. (quoting Reynolds, 345 U.S. at 10). “The\nstate secrets privilege has been held to apply to information\nthat would result in ‘impairment to the nation’s defense\ncapabilities, disclosure of intelligence-gathering methods or\ncapabilities, and disruption of diplomatic relations with\nforeign governments, or where disclosure would be inimical\nto national security.’” Fazaga v. Fed. Bureau of\nInvestigation, 916 F.3d 1202, 1227 (9th Cir. 2019) (quoting\nBlack v. United States, 62 F.3d 1115, 1118 (8th Cir. 1995)).\nWe have on more than one occasion commented on the\ndifficulty of defining what constitutes a “state secret.” Id.\n(noting “the ambiguity . . . at the outset”); Mohamed,\n614 F.3d at 1082 (“We do not offer a detailed definition of\nwhat constitutes a state secret.”).\n\n Our guidance on evaluating the need for secrecy has\nbeen contradictory. On the one hand, “we acknowledge the\nneed to defer to the Executive on matters of foreign policy\nand national security and surely cannot legitimately find\nourselves second guessing the Executive in this area.” Al-\nHaramain, 507 F.3d at 1203. On the other hand, “the state\nsecrets doctrine does not represent a surrender of judicial\ncontrol over access to the courts.” Mohamed, 614 F.3d\nat 1082 (quoting El-Masri, 479 F.3d at 312). “Rather, ‘to\nensure that the state secrets privilege is asserted no more\nfrequently and sweepingly than necessary, it is essential that\nthe courts continue critically to examine instances of its\ninvocation.” Id. (quoting Ellsberg v. Mitchell, 709 F.2d 51,\n58 (D.C. Cir. 1983)). “We take very seriously our obligation\nto review the [claim] with a very careful, indeed a skeptical,\neye, and not to accept at face value the government’s claim\nor justification of privilege.” Al-Haramain, 507 F.3d at\n\n HUSAYN V. UNITED STATES 17\n\n1203. For instance, “an executive decision to classify the\ninformation is insufficient to establish that the information is\nprivileged.” Mohamed, 614 F.3d at 1082 (citing Ellsberg,\n709 F.2d at 57). “Simply saying ‘military secret,’ ‘national\nsecurity’ or ‘terrorist threat’ or invoking an ethereal fear that\ndisclosure will threaten our nation is insufficient to support\nthe privilege.” Al-Haramain, 507 F.3d at 1203.\n\n Here, the government asserts the state secrets privilege\nover seven categories of information: (1) information that\ncould identify individuals involved in the CIA detention and\ninterrogation program; (2) information regarding foreign\ngovernment cooperation with the CIA; (3) information\npertaining to the operation or location of any clandestine\noverseas CIA station, base, or detention facility;\n(4) information regarding the capture and/or transfer of\ndetainees; (5) intelligence information about detainees and\nterrorist organizations, including intelligence obtained or\ndiscussed in debriefing or interrogation sessions;\n(6) information concerning CIA intelligence sources and\nmethods, as well as specific intelligence operations; and,\n(7) information concerning the CIA’s internal structure and\nadministration.\n\n One of the Pompeo declarations asserts that the\ndiscovery sought by Petitioners “would tend to confirm or\ndeny whether or not [Mitchell and Jessen] have information\nabout these categories as they pertain to whether or not the\nCIA conducted detention and interrogation operations in\nPoland and/or with the assistance of the Polish\nGovernment.” Disclosure of the existence of a clandestine\nintelligence relationship or the extent to which a foreign\ngovernment is covertly operating or sharing intelligence\nwould, according to Pompeo, cause significant harm to\nnational security because it would: (1) breach the trust on\n\n18 HUSAYN V. UNITED STATES\n\nwhich the relationship is based; (2) compromise the CIA’s\nability to obtain intelligence information or secure\ncooperation in counterterrorism operations; and\n(3) engender backlash from foreign governments.\nFurthermore, Pompeo asserts that the specific locations of\nCIA stations and information about former detention\nfacilities are generally classified as “SECRET” and “TOP\nSECRET” respectively because acknowledging the location\nof covert facilities could endanger the safety of CIA officers\nand incite backlash from the host country.\n\n Reviewing the government’s documents, we note that\nmuch of the concern animating the assertion of the state\nsecret privilege is that harm might result from the\ngovernment’s disclosure of certain information—in\nparticular, confirming or denying the location of a CIA black\nsite—rather than a concern that harm might result from the\nspread of the information per se. This is not surprising, as\nsubstantial aspects of the information that the government\ninsists are privileged are basically public knowledge. 14 The\nPompeo declaration acknowledges that there have been\nallegations by the media, nongovernmental organizations,\nand former Polish government officials of the CIA operating\na detention facility in Poland. Pompeo explains that the\ngovernment cannot control what former foreign government\nofficials might choose to say, but that the absence of official\n\n 14\n We cannot agree with the dissent that Article III judges are “not\nin a position” to reach conclusions with publicly available facts. Dissent\nat 31. Indeed, the dissent’s position appears to be inconsistent with our\nessential obligation to review state secrets critically, with a skeptical eye.\nSee Mohamed, 614 F.3d at 1082 (quoting El-Masri, 479 F.3d at 312); Al-\nHaramain, 507 F.3d at 1203. We note further that, in the context of\npreliminary proceedings such as those here, we are not called upon to,\nand do not, render any final decision on the merits.\n\n HUSAYN V. UNITED STATES 19\n\nconfirmation from the CIA is the key to preserving an\n“important element of doubt about the veracity of the\ninformation.” 15\n\n Even if we accept that logic, however, the government\nfails to explain why discovery here could amount to such an\n“official confirmation.” The conclusion that the existence of\na CIA site in Poland is not a secret is not equivalent to a\nfinding, either by the district court or this court, that the\ngovernment has taken any official position on the existence\nof such a facility. Nothing in this opinion should be read to\nsuggest otherwise. As the district court found, neither\nMitchell nor Jessen are agents of the government. 16 The\ngovernment has not contested—and we will not disturb—\nthat finding. See Mohamed, 614 F.3d at 1077 (noting clear\nerror standard). As private parties, Mitchell’s and Jessen’s\ndisclosures are not equivalent to the United States\nconfirming or denying anything.\n\n Moreover, in light of the record, we agree with the\ndistrict court that disclosure of certain basic facts would not\n\n 15\n The district court, we note, did not accept the government’s\nposition, and did “not find convincing the claim that merely\nacknowledging, or denying, the fact the CIA was involved with a facility\nin Poland poses an exceptionally grave risk to national security.” We\nneed not and do not address that determination because, regardless\nwhether governmental acknowledgment would implicate national\nsecurity, as discussed below, nothing about the government’s\nparticipation in discovery would constitute governmental\nacknowledgement or denial of the site’s existence.\n\n 16\n Despite so concluding, the district court inconsistently determined\nat step three of the Reynolds analysis that the government’s participation\nin discovery would constitute implicit governmental acknowledgment of\nthe program. As discussed herein, see infra at n.18, we do not share that\nassessment.\n\n20 HUSAYN V. UNITED STATES\n\n“cause grave damage to national security.” Al-Haramain,\n507 F.3d at 1195. First, we agree with the district court and\nPetitioners that in order to be a “state secret,” a fact must first\nbe a “secret.” In other contexts where the state secrets\nprivilege was applied, the privilege was used to withhold\ninformation that was not publicly accessible. See Mohamed,\n614 F.3d at 1087 (“We are precluded from explaining\nprecisely which matters the privilege covers lest we\njeopardize the secrets we are bound to protect.”); id. at 1095\n(Hawkins, J., joined by Schroeder, J., Canby, J., Thomas, J.,\nand Paez, J., dissenting) (describing onerous procedure\nundertaken to preserve a “‘cone of silence’ environment” for\nus to review the sealed record en banc); Al-Haramain,\n507 F.3d at 1203 (concluding that the “Sealed Document is\nprotected by the state secrets privilege” after reviewing it in\ncamera); Kasza v. Browner, 133 F.3d 1159, 1170 (9th Cir.\n1998) (“Based on our in camera review of both General\nMoorman’s and Secretary Widnall’s classified declarations,\n. . . [w]e are convinced that release of such information\nwould reasonably endanger national security interests.”).\nInsofar as the government asserts privilege over the basic\nfact that the CIA detained Abu Zubaydah in Poland and that\nhe was subjected to torture there, this certainly does not\nprotect the disclosure of secret information, but rather\nprevents the discussion of already disclosed information in a\nparticular case.\n\n We note that the discovery request here comes indirectly\nfrom current Polish authorities, specifically, prosecutors\nwho have been tasked by the ECHR and the Polish\ngovernment to investigate the circumstances surrounding\nAbu Zubaydah’s detention in Poland. This is significant for\ntwo reasons. First, it reaffirms our conclusion that the fact\nthat the CIA operated in Poland and possibly collaborated\nwith Polish individuals over Abu Zubaydah’s detention is\n\n HUSAYN V. UNITED STATES 21\n\nnot a secret that would harm national security. Cf. Al-\nHaramain, 507 F.3d at 1200 (noting how details given\nthrough “voluntary disclosures made by various officials”\nare not state secrets). Second, it undermines the asserted\nnational security risks outlined by Pompeo’s declarations,\nsuch as breaching trust with the cooperating country or\ngenerating backlash in that country. While we recognize the\nlegitimacy of these concerns, they appear less of a concern\nwhen the other country—here, Poland—is investigating\ncriminal liability of the subject matter involved in this\ndiscovery application.\n\n Last, we emphasize the importance of striking “an\nappropriate balance . . . between protecting national security\nmatters and preserving an open court system.” Id. at 1203.\nWhile it is essential to guard the courts from becoming\nconduits for undermining the executive branch’s control\nover information related to national security, these concerns\ndo not apply when the alleged state secret is no secret at all,\nbut rather a matter that is sensitive or embarrassing to the\ngovernment. In other words, the rationale behind the state\nsecrets privilege is to protect legitimate government\ninterests, not to shield the government from uncomfortable\nfacts that may be disclosed or discussed in litigation.\nProtecting the former is an unfortunate necessity in our\ncomplicated world of national and international affairs.\nProtecting the latter is inconsistent with the principle of an\nindependent judiciary.\n\n Reviewing Petitioners’ request for documents, we agree\nwith the district court that much, although not all, of the\ninformation requested by Petitioners is covered by the state\nsecrets privilege. For instance, documents, memoranda, and\ncorrespondence about the identities and roles of foreign\nindividuals involved with the detention facility, operational\n\n22 HUSAYN V. UNITED STATES\n\ndetails about the facility, and any contracts made with Polish\ngovernment officials or private persons residing in Poland\nmight implicate the CIA’s intelligence gathering efforts. As\nexplained in the Pompeo declaration, disclosure of the\nidentities of foreign nationals who work with the CIA risks\ndamaging the intelligence relationship and compromising\ncurrent and future counterterrorism operations.\n\n Nonetheless, we also agree with the district court that a\nsubset of information is not—at least in broad strokes—a\nstate secret, namely: the fact that the CIA operated a\ndetention facility in Poland in the early 2000s; information\nabout the use of interrogation techniques and conditions of\nconfinement in that detention facility; and details of Abu\nZubaydah’s treatment there. These facts have been in the\npublic eye for some years now, and we find no reason to\nbelieve that Mitchell and Jessen testifying about these facts\n“will expose . . . matters which, in the interest of national\nsecurity, should not be divulged.” Reynolds, 345 U.S. at 10.\nWe therefore reject the government’s blanket assertion of\nstate secrets privilege over everything in Petitioners’\ndiscovery request. See Fazaga, 1202 F.3d at 1228\n(reiterating “caution[] that courts should work ‘to ensure that\nthe state secrets privilege is asserted no more frequently and\nsweepingly than necessary.’” (quoting Mohamed, 614 F.3d\nat 1082)).\n\n C.\n\n At step three of the Reynolds analysis, we face the more\ndifficult task of determining how the matter should proceed\nin light of a successful claim of privilege. 17 Mohamed,\n\n 17\n As the dissent notes, our main disagreement is at the third\nReynolds step. Dissent at 30. The dissent’s concern about “walking\n\n HUSAYN V. UNITED STATES 23\n\n614 F.3d at 1082. We have held that, “whenever possible,\nsensitive information must be disentangled from\nnonsensitive information to allow for release of the latter.”\nId. (original alterations omitted) (quoting Kasza, 133 F.3d\nat 1166; Ellsberg, 709 F.2d at 57). There are three limited\ncircumstances in which a successful claim of privilege\nrequires outright termination of the case: (1) where the\nplaintiff cannot prove the prima facie elements of the claim\nwith nonprivileged evidence; (2) where the privilege\ndeprives that defendant of information that would have\notherwise given the defendant a valid defense to the claim;\nor (3) where the claims and defenses might theoretically be\nestablished without relying on the privileged evidence, but\n“it may be impossible to proceed with the litigation\nbecause—privileged evidence being inseparable from\nnonprivileged information that will be necessary to the\nclaims or defenses—litigating the case to a judgment on the\nmerits would present an unacceptable risk of disclosing state\nsecrets.” Id. at 1083.\n\n\nclose” to “the line of actual state secrets” simply does not reflect the test\nfrom Mohamed, which requires that nonsensitive information be released\n“whenever possible.” Compare Dissent at 31, with Mohamed, 614 F.3d\nat 1087–89. The dissent also asserts, without any support, that the\nReynolds step two analysis must also take into consideration the fact that\nthe information sought here is ultimately destined for a foreign tribunal\nin Poland. Dissent at 34. A state secret, however, is a state secret in any\nforum, domestic or foreign. The crux of the question is whether “there\nis a reasonable danger that compulsion of the evidence will expose . . .\nmatters which, in the interest of national security, should not be\ndivulged.” Reynolds, 345 U.S. at 10. Moreover, the dissent’s analysis\nof Reynolds fails to consider the district court’s authority to decide\nwhether discovery should be provided to Petitioners in the first instance.\nOnly then would Petitioners be able to provide any information to a\nforeign tribunal.\n\n24 HUSAYN V. UNITED STATES\n\n The district court properly identified the third\ncircumstance as the only one potentially applicable to a\ndiscovery proceeding such as this case. We agree with\nPetitioners, however, that it is not impossible to separate\nsecret information, and that the district court was too quick\nto quash the subpoenas and dismiss the case in its entirety. 18\n\n Unlike our prior cases, this case is a pure discovery\nmatter where there are no claims to prove or defenses to\nassert. 19 See Mohamed, 614 F.3d at 1075, 1093 (dismissing\n\n 18\n The district court determined that the government’s\nacknowledgment of the existence of a CIA facility in Poland would not\nimplicate a state secret, a conclusion we need not address nor that we\nnecessarily share. See supra at n.15. The district court nonetheless\nproceeded to find dismissal appropriate under Reynolds step three\nbecause, given that Petitioners made clear that they seek information\nabout Poland, “the Government participating could be viewed as implicit\nconfirmation of operation of the Program in Poland.” As mentioned\nabove, we reject that determination. See supra at n.16. The district\ncourt’s inconsistent and erroneous view of the effect of the government’s\nparticipation in discovery was fundamental to the court’s conclusion that\nthis case should be dismissed outright. The district court found that\nimplicit government acknowledgment, although “seemingly innocuous,”\nwas intertwined with state secrets. As we already noted, however,\nnothing about the government’s participation in this case would\nconstitute official acknowledgment, implicit or otherwise. Thus, the\ndistrict court’s Reynolds step three conclusion was based entirely upon a\nfaulty predicate.\n 19\n For this reason, the dissent’s reliance on Mohamed, Al-Haramain,\nand Kasza is off-base. In those cases, plaintiffs sought information that\nbelonged to what the courts deemed a “classified mosaic.” Kasza,\n133 F.3d at 1166. The courts were able to reach that conclusion because\nthey all underwent the process of reviewing the contested material to\ndetermine that there was privileged information that could not be\ndisentangled. See Mohamed, 614 F.3d at 1095; Al-Haramain, 507 F.3d\nat 1203; Kasza, 133 F.3d at 1170. That was an essential predicate to the\ncourts’ dismissal at step three of the Reynolds analysis. See, e.g.,\n\n HUSAYN V. UNITED STATES 25\n\nsuit against a U.S. corporation under the Alien Tort Statute\nbased on its alleged involvement in the CIA extraordinary\nrendition program); Al-Haramain, 507 F.3d at 1205\n(dismissing lawsuit against the United States because\nplaintiffs could not show standing without privileged\ndocument); Kasza, 133 F.3d at 1162–63 (affirming dismissal\nof citizen suits against the U.S. Air Force and Environmental\nProtection agency). Section 1782 provides the district court\ndiscretion to order an individual to give deposition testimony\nor produce documents for use in a foreign proceeding\nprovided it does not violate “any legally applicable\nprivilege.” 28 U.S.C. § 1782(a). The government does not\nchallenge the district court’s exercise of that discretion or\napplication of the Intel factors. See supra at n.13. By the\nterms of the statute, Petitioners can pursue any nonprivileged\ndiscovery within the parameters set by the district court. 20\n\n\nMohamed, 614 F.3d at 1087 (“We have thoroughly considered plaintiffs’\nclaims, several possible defenses and the prospective path of this\nlitigation. We also have carefully and skeptically reviewed the\ngovernment’s classified submissions . . . We rely heavily on these\nsubmissions, which describe the state secrets implicated here, the harm\nto national security that the government believes would result from\nexplicit or implicit disclosure and the reasons why, in the government’s\nview, further litigation would risk that disclosure.”).\n\n Conversely, here, neither the district court nor we have had any\noccasion to review the contested material to reach that threshold\nquestion. Given the limited factual record, the dissent repeats the same\nerror that the district court made by assuming the truth of the\ngovernment’s assertions—that it would not be possible to disentangle the\nprivileged from nonprivileged—without first invoking available\ndiscovery tools as required by Mohamed. See 614 F.3d at 1089.\n 20\n We agree with Petitioners that, to the extent the district court\ndenied discovery because disclosure of some information “would not\nseem to aid the Polish investigation,” the district court erred by imposing\n\n26 HUSAYN V. UNITED STATES\n\n Moreover, the record suggests that Petitioners can obtain\nnonprivileged information from Mitchell and Jessen. At the\ndistrict court, Petitioners argued:\n\n [W]e are here in order to understand the story\n around [Abu Zubaydah’s claims in Poland]\n . . . You know, what was the narrative, what\n sort of treatment was Mr. Zubaydah\n subjected to, what was the feeding regime,\n how was he held, what medical care was he\n given, and of course, yes, we want to know if\n locals were involved in that and to what\n extent.\n\n ...\n\n Now, ideally, Your Honor, because we think\n that these are not state secrets at this point in\n time, we would prefer that Mitchell and\n Jessen be permitted to testify as to the\n identities of people and where it occurred.\n But the prosecutor already knows where the\n events occurred and my suspicion is he has a\n good idea, although I’m not privy to the\n specifics of his investigation, of who, you\n know, who his targets are.\n\nEven if Mitchell and Jessen are restricted from disclosing\nstate secrets such as the identities of individuals involved\nwith the detention facility, the non-secret information in\n\n\nan extraneous requirement upon Petitioners. Whether discoverable\ninformation may or may not be “useful” in foreign proceedings has no\nbearing on whether the information is privileged.\n\n HUSAYN V. UNITED STATES 27\n\ntheir possession could provide context to Polish prosecutors\nor corroborate prosecutors’ independent investigations.\n\n More importantly, we conclude that the district court did\nnot adequately attempt to disentangle the privileged from\nnonprivileged information. 21 As we noted in Mohamed, “the\nstandards for peremptory dismissal are very high and it is the\ndistrict court’s role to use its fact-finding and other tools to\nfull advantage before it concludes that the rare step of\ndismissal is justified.” 614 F.3d at 1092–93; see also\nReynolds, 345 U.S. at 11–12 (remanding for further\nproceedings where plaintiffs potentially could pursue their\ntort action without using material touching upon military\nsecrets); cf. Heraeus, 633 F.3d at 597 (noting that once the\ndistrict court grants a section 1782 application, “the ordinary\ntools of discovery management . . . come into play”).\n\n Mitchell and Jessen have already provided nonprivileged\ninformation similar to that sought here in the Salim lawsuit\nbefore the district court, illustrating the viability of this\ndisentanglement. Excerpts of those depositions were\nincluded in the record and reflect how depositions could\nproceed in this case, such as with the use of code names and\n\n\n 21\n See supra at n.18. This is an essential point that the dissent\noverlooks: where Reynolds privilege is successfully asserted at steps one\nand two, the default at step three is nonetheless to “whenever possible\n. . . disentangle[] [the sensitive information] from nonsensitive\ninformation to allow for the release of the latter.” Kasza, 133 F.3d\nat 1166 (quoting Ellsberg, 709 F.2d at 57); see also Mohamed, 614 F.3d\nat 1089 (“Dismissal at the pleading stage under Reynolds is a drastic\nresult and should not be readily granted.”). The dissent would flip the\ndefault to dismissal, unless Petitioners met a newly imposed burden to\ndemonstrate a specific plan for disentanglement.\n\n28 HUSAYN V. UNITED STATES\n\npseudonyms, where appropriate. 22 While this no doubt\nimposes a burden on the government to participate in\ndiscovery and object, where appropriate, 23 we have stressed\nthat cases should be dismissed only “in the[] rare\ncircumstances” that the district court is not able to employ\nprotective procedures to prevent disclosure of state secrets.\nMohamed, 614 F.3d at 1089. We are not convinced that\nthose rare circumstances exist here. On remand, the district\ncourt may use the Pompeo declarations as a guide while\nemploying tools such as in camera review, protective orders,\nand restrictions on testimony, see id., in tailoring the scope\nof Mitchell’s and Jessen’s deposition and the documents\nthey may be required to produce.\n\n IV.\n\n We have grappled with the state secrets privilege on only\nrare occasions. Given that the district court had only Kasza,\nAl-Haramain and Mohamed as guides in conducting its\nReynolds analysis, we can understand why the district court\nwas so quick to dismiss the proceedings at the third step. The\ncourt’s hasty dismissal, however, overlooked our “special\nburden to assure . . . that an appropriate balance is struck\nbetween protecting national security matters and preserving\n\n\n\n 22\n The dissent attempts to distinguish the situation in Salim and faults\nPetitioners for not presenting a viable disentanglement plan to the district\ncourt. Dissent at 32–33. Again, this disregards the fact that the district\ncourt never engaged in any disentanglement process or assessed what\nprotective measures could be utilized to accomplish disentanglement.\n 23\n Eight U.S. government attorneys or experts were present at the\ndepositions of Mitchell and Jessen in Salim to ensure that nothing\nconfidential or privileged would be disclosed.\n\n HUSAYN V. UNITED STATES 29\n\nan open court system,” Mohamed, 614 F.3d at 1081 (quoting\nAl-Haramain, 507 F.3d at 1203).\n\n Our holding is a limited one: if, upon reviewing disputed\ndiscovery and meaningfully engaging the panoply of tools at\nits disposal, the district court determines that it is not\npossible to disentangle the privileged from nonprivileged, it\nmay again conclude that dismissal is appropriate at step three\nof the Reynolds analysis. However, the district court may\nnot skip directly to dismissal without doing more. “[A]s\njudges, we strive to honor all of these principles [of justice,\ntransparency, accountability and national security],” and\nwhile “there are times when exceptional circumstances\ncreate an irreconcilable conflict between them,” id. at\n1073—on the limited record before us, this is not one of\nthose times.\n\n The world has moved on since we discussed the state\nsecrets privilege in Mohamed. In the near decade that has\npassed, we have engaged in a public debate over the CIA’s\nconduct during the early years of the war on terror. The\ndistrict court correctly recognized that the state secrets\nprivilege did not cover all the discovery sought by\nPetitioners, but failed to recognize that complete dismissal\nbased on the state secrets privilege is reserved only for “rare\ncases.” Id. at 1092.\n\n REVERSED and REMANDED for further\nproceedings.\n\n30 HUSAYN V. UNITED STATES\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Zayn Al-Abidin Husayn v. United States\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-18\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\n ZAYN AL-ABIDIN MUHAMMAD No. 18-35218\\n HUSAYN; JOSEPH MARGULIES,\\n Petitioners-Appellants, D.C. No.\\n 2:17-cv-00171-\\n v. JLQ\\n\\n JAMES ELMER MITCHELL; JOHN\\n JESSEN, OPINION\\n Respondents,\\n\\n UNITED STATES OF AMERICA,\\n Intervenor-Appellee.\\n\\n Appeal from the United States District Court\\n for the Eastern District of Washington\\n Justin L. Quackenbush, District Judge, Presiding\\n\\n Argued and Submitted March 5, 2019\\n Seattle, Washington\\n\\n Filed September 18, 2019\\n\\n Before: Ronald M. Gould and Richard A. Paez, Circuit\\n Judges, and Dean D. Pregerson, * District Judge.\\n\\n\\n\\n *\\n The Honorable Dean D. Pregerson, United States District Judge\\nfor the Central District of California, sitting by designation.\\n\\n2 HUSAYN V. UNITED STATES\\n\\n Opinion by Judge Paez;\\n Dissent by Judge Gould\\n\\n\\n SUMMARY **\\n\\n\\n State Secrets Privilege / Subpoena\\n\\n The panel reversed the district court’s order quashing a\\nsubpoena sought by Abu Zubaydah, who is currently held at\\nthe U.S. detention facility in the Guantanamo Bay Naval\\nBase in Cuba, and his attorney (“Petitioners”), and\\ndismissing the case in its entirety.\\n\\n Petitioners filed an ex parte application for discovery\\npursuant to 28 U.S.C. § 1782, and sought an order to\\nsubpoena James Elmer Mitchell and John Jessen for their\\ndepositions for use in an ongoing criminal investigation in\\nPoland about the torture to which Abu Zubaydah was\\nsubjected in that country. The district court originally\\ngranted the discovery application, but subsequently quashed\\nthe subpoenas after the U.S. government intervened and\\nasserted the state secrets privilege.\\n\\n The panel agreed with the district court that certain\\ninformation requested was not privileged because it was not\\na state secret that would pose an exceptionally grave risk to\\nnational security. The panel agreed that the government’s\\nassertion of the state secrets privilege was valid over much\\nof the information requested. The panel concluded,\\nhowever, that the district court erred in quashing the\\n\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\n HUSAYN V. UNITED STATES 3\\n\\nsubpoenas in toto rather than attempting to disentangle\\nnonprivileged from privileged information. The panel\\nremanded for further proceedings.\\n\\n Judge Gould dissented, and would affirm the district\\ncourt. Judge Gould would defer to the view of then-CIA\\nDirector and current Secretary of State Michael Pompeo that\\nthe disclosure of secret information in this proceeding\\n“reasonably could be expected to cause serious, and in many\\ninstances, exceptionally grave damage to U.S. national\\nsecurity.”\\n\\n\\n COUNSEL\\n\\nDavid F. Klein (argued) and John Chamberlain, Pillsbury\\nWinthrop Shaw Pittman LLP, Washington, D.C.; Jerry\\nMoberg, Jerry Moberg & Associates, Ephrata, Washington;\\nfor Petitioners-Appellants.\\n\\nH. Thomas Byron III (argued), Appellate Staff; Joseph H.\\nHarrington, United States Attorney; Civil Division, United\\nStates Department of Justice, Washington, D.C.; for\\nIntervenor-Appellee.\\n\\n4 HUSAYN V. UNITED STATES\\n\\n OPINION\\n\\nPAEZ, Circuit Judge:\\n\\n Zayn al-Abidin Muhammad Husayn (“Abu Zubaydah”) 1\\nis currently held at the U.S. detention facility in the\\nGuantanamo Bay Naval Base in Cuba. Abu Zubaydah was\\nformerly detained as part of the Central Intelligence Agency\\n(“CIA”)’s detention and interrogation program, also\\ncommonly known as the post-9/11 “enhanced interrogation”\\nor torture program. In 2017, Abu Zubaydah and his attorney,\\nJoseph Margulies (collectively “Petitioners”), filed an ex\\nparte application for discovery pursuant to 28 U.S.C. § 1782,\\nwhich permits certain domestic discovery for use in foreign\\nproceedings. They sought an order to subpoena James Elmer\\nMitchell and John Jessen for their depositions for use in an\\nongoing criminal investigation in Poland about the torture to\\nwhich Abu Zubaydah was subjected in that country. The\\ndistrict court originally granted the discovery application,\\nbut subsequently quashed the subpoenas after the U.S.\\ngovernment intervened and asserted the state secrets\\nprivilege.\\n\\n The Supreme Court has long recognized that in\\nexceptional circumstances, courts must act in the interest of\\nthe country’s national security to prevent the disclosure of\\nstate secrets by excluding privileged evidence from the case\\nand, in some instances, dismissing the case entirely. See\\nTotten v. United States, 92 U.S. 105 (1875); see also United\\nStates v. Reynolds, 345 U.S. 1 (1953). This appeal presents\\na narrow but important question: whether the district court\\n\\n 1\\n Abu Zubaydah’s birth name was Zayn al-Abidin Muhammad\\nHusayn but he is known as Abu Zubaydah in litigation and public\\nrecords.\\n\\n HUSAYN V. UNITED STATES 5\\n\\nerred in quashing the subpoenas after concluding that not all\\nthe discovery sought was subject to the state secrets\\nprivilege.\\n\\n We have jurisdiction pursuant to 28 U.S.C. § 1291, and\\nwe reverse. We agree with the district court that certain\\ninformation requested is not privileged because it is not a\\nstate secret that would pose an exceptionally grave risk to\\nnational security. We also agree that the government’s\\nassertion of the state secrets privilege is valid over much of\\nthe information requested. We conclude, however, that the\\ndistrict court erred in quashing the subpoenas in toto rather\\nthan attempting to disentangle nonprivileged from\\nprivileged information.\\n\\n We have “emphasize[d] that it should be a rare case\\nwhen the state secrets doctrine leads to dismissal at the outset\\nof a case.” Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d\\n1070, 1092 (2010) (en banc); see also Reynolds, 345 U.S.\\nat 9–10 (noting that “[j]udicial control over the evidence in\\na case cannot be abdicated to the caprice of executive\\nofficers”). Here, the underlying proceeding is a limited\\ndiscovery request that can be managed by the district court,\\nwhich is obligated “to use its fact-finding and other tools to\\nfull advantage before it concludes that the rare step of\\ndismissal is justified.” Mohamed, 614 F.3d at 1093. We\\ntherefore reverse the district court’s judgment dismissing\\nPetitioners’ section 1782 application for discovery and\\nremand for further proceedings. 2\\n\\n 2\\n Because the district court granted the motion to quash based on the\\nstate secrets privilege, it did not address the government’s alternative\\narguments under the Central Intelligence Agency Act, 50 U.S.C. § 3507,\\nand the National Security Act, 50 U.S.C. § 3024(i). If relevant, the\\ndistrict court may consider these arguments on remand.\\n\\n6 HUSAYN V. UNITED STATES\\n\\n I.\\n\\n A.\\n\\n In late March 2002, Pakistani government authorities,\\nworking with the CIA, captured Abu Zubaydah in Pakistan.\\nAt the time, Abu Zubaydah was thought to be a high-level\\nmember of Al-Qa’ida 3 with detailed knowledge of terrorist\\nplans. A 2014 report by the Senate Select Committee on\\nIntelligence Study on the CIA’s detention and interrogation\\nprogram (“Senate Select Committee Report”) later revealed\\nthis characterization to be erroneous.\\n\\n In the first four years of his detention, Abu Zubaydah\\nwas held as an enemy combatant and transferred to various\\nsecret CIA “dark sites” for interrogation. Journalists, non-\\ngovernmental organizations, and Polish government\\nofficials have widely reported that one of those sites was in\\nPoland. In 2015, the European Court on Human Rights\\n(“ECHR”) found that Abu Zubaydah was detained at a CIA\\nsite in Poland from December 2002 to September 2003.\\n\\n Numerous sources also confirm that Abu Zubaydah was\\nsubjected to so-called “enhanced interrogation” techniques\\nwhile detained at these CIA sites. These techniques were\\nproposed and developed by Mitchell and Jessen, 4 who at that\\n\\n 3\\n For consistency, we employ the spelling used by the Senate Select\\nCommittee Report in this opinion.\\n\\n 4\\n Mitchell and Jessen are referred to as “SWIGERT” and\\n“DUNBAR” in the Senate Select Committee Report, and have admitted\\nto their involvement with the CIA program in a separate lawsuit, Salim\\nv. Mitchell, No. 2:15-cv-286-JLQ, Answer to Complaint and Affirmative\\nDefenses (E.D. Wash. June 16, 2016) (“Salim”).\\n\\n HUSAYN V. UNITED STATES 7\\n\\npoint were independent contractors for the CIA. They\\nworked on “novel interrogation methods” intended to break\\ndown Abu Zubaydah’s resistance, including the use of\\ninsects—to take advantage of his entomophobia—and mock\\nburial. The details of Abu Zubaydah’s treatment during this\\nperiod are uncontroverted: he was persistently and\\nrepeatedly waterboarded; he spent hundreds of hours in a\\n“confinement box,” described as coffin-sized; he was\\nsubjected to various combinations of interrogation\\ntechniques including “walling, 5 attention grasps, 6 slapping,\\nfacial hold, stress positions, cramped confinement, white\\nnoise and sleep deprivation”; his food intake was\\nmanipulated to minimize the potential of vomiting during\\nwaterboarding. To use colloquial terms, as was suggested\\nby the Senate Select Committee Report, Abu Zubaydah was\\ntortured.\\n\\n The ECHR found that some of this torture took place in\\nPoland. Mitchell and Jessen traveled to the CIA black site\\nthere at least twice to supervise the interrogations.\\nDeclassified CIA cables confirm Mitchell’s and Jessen’s\\ninvolvement in Abu Zubaydah’s torture. Abu Zubaydah was\\neventually transferred to a succession of facilities outside of\\nPoland before arriving in Guantanamo Bay, where he\\nremains today. Abu Zubaydah has allegedly sustained\\npermanent brain damage and physical impairments,\\n\\n 5\\n According to a declassified U.S. Department of Justice Office of\\nLegal Counsel (“OLC”) memo, “walling” refers to when an individual\\nis firmly pushed against a flexible false wall, hitting the shoulder blades,\\nto create the sensation of physical impact that is worse than it is.\\n\\n 6\\n The same OLC memo describes “attention grasp” to consist of\\ngrasping an individual with both hands, one hand on each side of the\\ncollar opening, in a controlled and quick motion, drawing the individual\\ntoward the interrogator.\\n\\n8 HUSAYN V. UNITED STATES\\n\\nincluding over 300 seizures in the span of three years and the\\nloss of his left eye.\\n\\n In 2010, Abu Zubaydah’s attorneys and certain\\nhumanitarian organizations filed a criminal complaint in\\nPoland on his behalf seeking to hold Polish officials\\naccountable for their complicity in his unlawful detention\\nand torture. That investigation closed without any\\nprosecutions or convictions. In 2013, Abu Zubaydah’s\\nattorneys filed an application with the ECHR alleging that\\nPoland had violated the Convention for the Protection of\\nHuman Rights and Fundamental Rights and failed to\\nundertake a proper investigation. This resulted in the\\nECHR’s decision in Case of Husayn (Abu Zubaydah) v.\\nPoland, No. 7511/13, Eur. Ct. H.R. (2015). The court found\\n“beyond reasonable doubt” that Abu Zubaydah was detained\\nin Poland, that “the treatment to which [he] was subjected by\\nthe CIA during his detention in Poland . . . amount[ed] to\\ntorture,” and that Poland had failed to abide by its\\nobligations under the European Convention on Human\\nRights. The court accordingly awarded damages to Abu\\nZubaydah.\\n\\n After the ECHR issued its decision—finding, among\\nother things, that Poland failed to sufficiently investigate\\nhuman rights violations related to Abu Zubaydah’s treatment\\nin Poland—Polish authorities reopened their investigations\\ninto the violations, focusing on the culpability of Polish\\ncitizens and government officials in Abu Zubaydah’s\\ndetention. The Polish government requested evidence from\\nthe United States through the Mutual Legal Assistance\\nTreaty (“MLAT”) between the two countries. The United\\nStates denied the Polish government’s request.\\nSubsequently, Polish prosecutors followed up with Abu\\n\\n HUSAYN V. UNITED STATES 9\\n\\nZubaydah’s lawyers to ask for assistance with obtaining\\nevidence necessary to pursue the prosecution. 7\\n\\n B.\\n\\n Abu Zubaydah and his attorney, Margulies, filed an ex\\nparte application for discovery in the Eastern District of\\nWashington pursuant to 28 U.S.C. § 1782. Section 1782\\nprovides that “[t]he district court of the district in which a\\nperson resides or is found may order him to give his\\ntestimony or statement or to produce a document or other\\nthing for use in a proceeding in a foreign or international\\ntribunal.” Abu Zubaydah and his attorney sought a\\ndiscovery order subpoenaing Mitchell and Jessen to produce\\ndocuments and give deposition testimony for use in the\\nongoing criminal investigation in Poland.8 They requested\\nthat Mitchell and Jessen provide, among other related items,\\ndocuments concerning the detention facility in Poland, the\\nidentities of Polish officials involved in the establishment or\\noperation of the detention facility, the use of interrogation\\ntechniques, conditions of confinement and torture of those\\nbeing held, and any contracts made between Polish\\ngovernment officials or private persons residing in Poland\\nand U.S. personnel for use of the property upon which the\\ndetention facilities was located.\\n\\n\\n 7\\n Under Polish law, victims of crimes under investigation, like Abu\\nZubaydah, have a right to submit evidence through counsel to aid in the\\nPolish Prosecutor’s Office’s investigation.\\n\\n 8\\n Mitchell and Jessen co-founded Mitchell, Jessen & Associates,\\nwhich is headquartered in Spokane, Washington, and Jessen resides in\\nSpokane. Hence, they both “reside[] or [are] found” in the relevant\\ndistrict. 28 U.S.C. § 1782.\\n\\n10 HUSAYN V. UNITED STATES\\n\\n The United States submitted a “Statement of Interest”\\narguing that the district court should not grant Abu\\nZubaydah’s application based on the four factors outlined in\\nIntel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241\\n(2004). 9 The district court evaluated the section 1782\\napplication under the Intel factors and found that the Intel\\nfactors weighed in favor of granting the application for\\ndiscovery. It noted that the government’s concerns\\nregarding privilege and classification of documents were\\nhypothetical and could be raised at a later point. The district\\ncourt granted the application and Petitioners served the\\nsubpoenas on Mitchell and Jessen.\\n\\n\\n\\n\\n 9\\n The four Intel factors are: (1) whether the person from whom\\ndiscovery is sought is a participant in the foreign proceeding; (2) the\\nnature of the foreign tribunal, the character of the proceedings underway\\nabroad and the receptivity of the foreign government to U.S. federal-\\ncourt assistance; (3) whether the discovery request is an attempt to\\ncircumvent foreign proof-gathering restrictions or other policies of a\\nforeign country or the United States; and, (4) whether the discovery\\nrequest is unduly intrusive or burdensome. Intel, 542 U.S. at 264–65.\\nThe third Intel factor allows the court to consider the potential for abuse\\nof discovery for use in the foreign court. Id. at 265. “Once the court has\\ndetermined that such abuses are unlikely,” and grants the section 1782\\napplication, “the ordinary tools of discovery management, including\\n[Federal Rule of Civil Procedure] 26, come into play; and with\\nobjections based on the fact that discovery is being sought for use in a\\nforeign court cleared away, section 1782 drops out.” Heraeus Kulzer,\\nGmbH v. Biomet, Inc., 633 F.3d 591, 597 (7th Cir. 2011) (citing\\nEcuadorian Plaintiffs v. Chevron Corp., 619 F.3d 373, 377–78 (5th Cir.\\n2010); Weber v. Finker, 554 F.3d 1379, 1384–85 (11th Cir. 2009)). In\\nother words, once a section 1782 application is granted, the ordinary\\nrules of civil procedure relating to discovery shift into place.\\n\\n HUSAYN V. UNITED STATES 11\\n\\n After Mitchell and Jessen entered their appearance in\\ndistrict court, 10 the U.S. government filed a motion to\\nintervene and a motion to quash the subpoenas. In support\\nof the latter motion, the government made three arguments.\\nFirst, it argued that the district court lacked jurisdiction over\\nthe case under 28 U.S.C. § 2241(e)(2), which strips\\njurisdiction for courts to hear or consider any nonhabeas\\naction against the United States or its agents relating to any\\naspect of the detention, transfer, treatment, trial or conditions\\nof confinement of a designated enemy combatant outside the\\nprovisions of the Detainee Treatment Act of 2005, 10 U.S.C.\\n§ 801. Second, the government argued that the discovery\\nsought is protected by the state secrets privilege, relying on\\ntwo declarations from then-CIA Director, Michael\\nPompeo. 11 Third, it argued that both the National Security\\nAct of 1947 and the Central Intelligence Agency Act of 1949\\nprohibit the discovery sought.\\n\\n The district court granted the government’s motion to\\nintervene and motion to quash the subpoenas. The court\\nrejected the government’s first argument regarding the lack\\nof jurisdiction, noting that the government offered nothing\\nto establish an agency relationship between Mitchell and\\nJessen and the United States. The court then applied the\\nthree-part test outlined in Mohamed, 614 F.3d at 1080, to\\nevaluate the government’s assertion of the state secrets\\n\\n\\n\\n 10\\n Neither Mitchell nor Jessen opposed the discovery requested in\\nthis case and have taken no position on the issues in this appeal.\\n 11\\n Pompeo submitted a declaration addressing Petitioners’ section\\n1782 application and incorporated a prior declaration that he submitted\\nin the Salim lawsuit.\\n\\n12 HUSAYN V. UNITED STATES\\n\\nprivilege. 12 First, it found that the government had followed\\nthe procedural requirements for invoking the privilege.\\nSecond, it concluded that the fact of the CIA’s involvement\\nwith a facility in Poland was not a state secret that posed an\\nexceptionally grave risk to national security. The court\\nagreed, however, that other information, such as the roles\\nand identities of Polish citizens involved with the CIA site,\\nis covered by the state secrets privilege. Third, the court\\nconcluded that “[m]eaningful discovery cannot proceed in\\nthis matter without disclosing information that the\\nGovernment contends is subject to the state secrets\\nprivilege,” and thus it granted the motion to quash the\\nsubpoenas in their entirety and entered judgment. Abu\\nZubaydah and Margulies timely appealed.\\n\\n II.\\n\\n “We review de novo the interpretation and application of\\nthe state secrets doctrine and review for clear error the\\ndistrict court’s underlying factual findings.” Mohamed,\\n614 F.3d at 1077 (citing Al-Haramain Islamic Found., Inc.\\nv. Bush, 507 F.3d 1190, 1196 (9th Cir. 2007)).\\n\\n\\n\\n\\n 12\\n Although the state secrets doctrine encompasses a complete bar\\nunder Totten, 92 U.S. at 107, and an evidentiary privilege under\\nReynolds, 345 U.S. at 7–8, the district court correctly concluded that the\\nTotten bar does not apply in this case because the very subject matter of\\nthe action—the CIA’s enhanced interrogation program—is not a state\\nsecret. See Mohamed, 614 F.3d at 1085–89 (applying Reynolds privilege\\nanalysis); see also El-Masri v. United States, 479 F.3d 296, 307–10 (4th\\nCir. 2007) (same).\\n\\n HUSAYN V. UNITED STATES 13\\n\\n III.\\n\\n Petitioners argue that the district court erred in quashing\\nthe subpoenas in their entirety based on the state secrets\\nprivilege. The parties essentially disagree over the proper\\nanalysis under steps two and three under Reynolds. 13\\n\\n A.\\n\\n Before reviewing the district court’s decision, we\\nprovide some brief background on the state secrets privilege.\\nThe privilege derives from a common law doctrine that\\n“encompasses a ‘privilege against revealing military [or\\nstate] secrets, a privilege which is well established in the law\\nof evidence.’” Mohamed, 614 F.3d at 1079 (alterations in\\noriginal) (quoting Reynolds, 345 U.S. at 6–7). “The\\nprivilege is not to be lightly invoked.” Al-Haramain,\\n507 F.3d at 1196. “A successful assertion of privilege under\\nReynolds will remove the privileged evidence from the\\nlitigation.” Mohamed, 614 F.3d at 1079. “Unlike the Totten\\nbar, a valid claim of privilege under Reynolds does not\\nautomatically require dismissal of the case.” Id. Assertion\\nof the state secrets privilege “will require dismissal [where]\\nit . . . become[s] apparent during the Reynolds analysis that\\n\\n 13\\n We are not persuaded by the government’s alternative argument\\nthat the district court’s decision can be affirmed as an exercise of\\ndiscretion to deny section 1782 discovery requests. First, the district\\ncourt exercised its discretion to grant the section 1782 application after\\napplying the Intel factors. That order is not on appeal. Moreover, the\\norder that was appealed was not a discretionary one. The district court\\nconcluded that it was required by the state secrets privilege to quash the\\nsubpoenas. The government’s attempt to challenge the district court’s\\nfirst order seeks to avoid the discretion expressly given to district courts\\nover section 1782 applications. See Intel, 542 U.S. at 255–61 (rejecting\\ncategorical limitations on section 1782’s reach based on the statute’s text\\nand legislative history giving discretion to the district court).\\n\\n14 HUSAYN V. UNITED STATES\\n\\nthe case cannot proceed without privileged evidence, or that\\nlitigating the case to a judgment on the merits would present\\nan unacceptable risk of disclosing state secrets.” Id.\\n\\n The Supreme Court identified and applied the state\\nsecrets privilege in Reynolds, where three estates filed\\nwrongful-death suits against the government following the\\nuntimely deaths of three civilian observers during a test\\nflight of a B-29 bomber. 345 U.S. at 3. In discovery,\\nplaintiffs sought production of the Air Force’s official\\naccident investigation report and the statements of three\\nsurviving crew members. Id. The Air Force refused to\\nproduce the materials, citing the need to protect national\\nsecurity and military secrets because the aircraft and\\npersonnel on board “were engaged in a highly secret\\nmission,” id. at 4, and the material could reveal information\\nabout the “development of highly technical and secret\\nmilitary equipment,” id. at 5. The district court ordered the\\ngovernment to produce the documents in camera so that the\\ncourt could determine whether they contained privileged\\nmaterial. When the government refused, the district court\\nimposed sanctions and ruled against the government on the\\nissue of negligence. Id. The Court of Appeals affirmed. Id.\\n\\n The Supreme Court reversed and sustained the\\ngovernment’s assertion of privilege after concluding, “from\\nall the circumstances of the case, that there [wa]s a\\nreasonable danger that compulsion of the evidence will\\nexpose military matters which, in the interest of national\\nsecurity, should not be divulged.” Id. at 10. In reaching this\\nconclusion, the Court noted “that this is a time of vigorous\\npreparation for national defense” and that “air power is one\\nof the most potent weapons in [the United States’] scheme\\nof defense.” Id. Rather than dismissing the case, however,\\nthe Court noted that it could be possible for the plaintiffs “to\\n\\n HUSAYN V. UNITED STATES 15\\n\\nadduce the essential facts as to causation [in support of their\\ntort claims] without resort to material touching upon military\\nsecrets,” and remanded for further proceedings. Id. at 11–\\n12.\\n\\n Based on Reynolds, we identified three steps for\\nanalyzing claims of the state secrets privilege:\\n\\n First, we must ascertain that the procedural\\n requirements for invoking the state secrets\\n privilege have been satisfied. Second, we\\n must make an independent determination\\n whether the information is privileged.\\n Finally, the ultimate question to be resolved\\n is how the matter should proceed in light of\\n the successful privilege claim.\\n\\nMohamed, 614 F.3d at 1080 (internal alterations and\\nquotation marks omitted) (quoting Al-Haramain, 507 F.3d\\nat 1202). The parties do not contest that the government\\nfulfilled the first requirement by filing the declarations from\\nthen-CIA Director Pompeo, who formally asserted the state\\nsecrets privilege with specificity in this case. See Reynolds,\\n245 U.S. at 7–8 (“There must be a formal claim of privilege,\\nlodged by the head of the department which has control over\\nthe matter, after actual personal consideration by that\\nofficer.”). We therefore proceed to the second and third\\nsteps of the Reynolds test.\\n\\n B.\\n\\n “When the privilege has been properly invoked, ‘we\\nmust make an independent determination whether the\\ninformation is privileged.’” Mohamed, 614 F.3d at 1081\\n(quoting Al-Haramain, 507 F.3d at 1202). “The court must\\nsustain a claim of privilege when it is satisfied, ‘from all the\\n\\n16 HUSAYN V. UNITED STATES\\n\\ncircumstances of the case, that there is a reasonable danger\\nthat compulsion of the evidence will expose . . . matters\\nwhich, in the interest of national security, should not be\\ndivulged.’” Id. (quoting Reynolds, 345 U.S. at 10). “The\\nstate secrets privilege has been held to apply to information\\nthat would result in ‘impairment to the nation’s defense\\ncapabilities, disclosure of intelligence-gathering methods or\\ncapabilities, and disruption of diplomatic relations with\\nforeign governments, or where disclosure would be inimical\\nto national security.’” Fazaga v. Fed. Bureau of\\nInvestigation, 916 F.3d 1202, 1227 (9th Cir. 2019) (quoting\\nBlack v. United States, 62 F.3d 1115, 1118 (8th Cir. 1995)).\\nWe have on more than one occasion commented on the\\ndifficulty of defining what constitutes a “state secret.” Id.\\n(noting “the ambiguity . . . at the outset”); Mohamed,\\n614 F.3d at 1082 (“We do not offer a detailed definition of\\nwhat constitutes a state secret.”).\\n\\n Our guidance on evaluating the need for secrecy has\\nbeen contradictory. On the one hand, “we acknowledge the\\nneed to defer to the Executive on matters of foreign policy\\nand national security and surely cannot legitimately find\\nourselves second guessing the Executive in this area.” Al-\\nHaramain, 507 F.3d at 1203. On the other hand, “the state\\nsecrets doctrine does not represent a surrender of judicial\\ncontrol over access to the courts.” Mohamed, 614 F.3d\\nat 1082 (quoting El-Masri, 479 F.3d at 312). “Rather, ‘to\\nensure that the state secrets privilege is asserted no more\\nfrequently and sweepingly than necessary, it is essential that\\nthe courts continue critically to examine instances of its\\ninvocation.” Id. (quoting Ellsberg v. Mitchell, 709 F.2d 51,\\n58 (D.C. Cir. 1983)). “We take very seriously our obligation\\nto review the [claim] with a very careful, indeed a skeptical,\\neye, and not to accept at face value the government’s claim\\nor justification of privilege.” Al-Haramain, 507 F.3d at\\n\\n HUSAYN V. UNITED STATES 17\\n\\n1203. For instance, “an executive decision to classify the\\ninformation is insufficient to establish that the information is\\nprivileged.” Mohamed, 614 F.3d at 1082 (citing Ellsberg,\\n709 F.2d at 57). “Simply saying ‘military secret,’ ‘national\\nsecurity’ or ‘terrorist threat’ or invoking an ethereal fear that\\ndisclosure will threaten our nation is insufficient to support\\nthe privilege.” Al-Haramain, 507 F.3d at 1203.\\n\\n Here, the government asserts the state secrets privilege\\nover seven categories of information: (1) information that\\ncould identify individuals involved in the CIA detention and\\ninterrogation program; (2) information regarding foreign\\ngovernment cooperation with the CIA; (3) information\\npertaining to the operation or location of any clandestine\\noverseas CIA station, base, or detention facility;\\n(4) information regarding the capture and/or transfer of\\ndetainees; (5) intelligence information about detainees and\\nterrorist organizations, including intelligence obtained or\\ndiscussed in debriefing or interrogation sessions;\\n(6) information concerning CIA intelligence sources and\\nmethods, as well as specific intelligence operations; and,\\n(7) information concerning the CIA’s internal structure and\\nadministration.\\n\\n One of the Pompeo declarations asserts that the\\ndiscovery sought by Petitioners “would tend to confirm or\\ndeny whether or not [Mitchell and Jessen] have information\\nabout these categories as they pertain to whether or not the\\nCIA conducted detention and interrogation operations in\\nPoland and/or with the assistance of the Polish\\nGovernment.” Disclosure of the existence of a clandestine\\nintelligence relationship or the extent to which a foreign\\ngovernment is covertly operating or sharing intelligence\\nwould, according to Pompeo, cause significant harm to\\nnational security because it would: (1) breach the trust on\\n\\n18 HUSAYN V. UNITED STATES\\n\\nwhich the relationship is based; (2) compromise the CIA’s\\nability to obtain intelligence information or secure\\ncooperation in counterterrorism operations; and\\n(3) engender backlash from foreign governments.\\nFurthermore, Pompeo asserts that the specific locations of\\nCIA stations and information about former detention\\nfacilities are generally classified as “SECRET” and “TOP\\nSECRET” respectively because acknowledging the location\\nof covert facilities could endanger the safety of CIA officers\\nand incite backlash from the host country.\\n\\n Reviewing the government’s documents, we note that\\nmuch of the concern animating the assertion of the state\\nsecret privilege is that harm might result from the\\ngovernment’s disclosure of certain information—in\\nparticular, confirming or denying the location of a CIA black\\nsite—rather than a concern that harm might result from the\\nspread of the information per se. This is not surprising, as\\nsubstantial aspects of the information that the government\\ninsists are privileged are basically public knowledge. 14 The\\nPompeo declaration acknowledges that there have been\\nallegations by the media, nongovernmental organizations,\\nand former Polish government officials of the CIA operating\\na detention facility in Poland. Pompeo explains that the\\ngovernment cannot control what former foreign government\\nofficials might choose to say, but that the absence of official\\n\\n 14\\n We cannot agree with the dissent that Article III judges are “not\\nin a position” to reach conclusions with publicly available facts. Dissent\\nat 31. Indeed, the dissent’s position appears to be inconsistent with our\\nessential obligation to review state secrets critically, with a skeptical eye.\\nSee Mohamed, 614 F.3d at 1082 (quoting El-Masri, 479 F.3d at 312); Al-\\nHaramain, 507 F.3d at 1203. We note further that, in the context of\\npreliminary proceedings such as those here, we are not called upon to,\\nand do not, render any final decision on the merits.\\n\\n HUSAYN V. UNITED STATES 19\\n\\nconfirmation from the CIA is the key to preserving an\\n“important element of doubt about the veracity of the\\ninformation.” 15\\n\\n Even if we accept that logic, however, the government\\nfails to explain why discovery here could amount to such an\\n“official confirmation.” The conclusion that the existence of\\na CIA site in Poland is not a secret is not equivalent to a\\nfinding, either by the district court or this court, that the\\ngovernment has taken any official position on the existence\\nof such a facility. Nothing in this opinion should be read to\\nsuggest otherwise. As the district court found, neither\\nMitchell nor Jessen are agents of the government. 16 The\\ngovernment has not contested—and we will not disturb—\\nthat finding. See Mohamed, 614 F.3d at 1077 (noting clear\\nerror standard). As private parties, Mitchell’s and Jessen’s\\ndisclosures are not equivalent to the United States\\nconfirming or denying anything.\\n\\n Moreover, in light of the record, we agree with the\\ndistrict court that disclosure of certain basic facts would not\\n\\n 15\\n The district court, we note, did not accept the government’s\\nposition, and did “not find convincing the claim that merely\\nacknowledging, or denying, the fact the CIA was involved with a facility\\nin Poland poses an exceptionally grave risk to national security.” We\\nneed not and do not address that determination because, regardless\\nwhether governmental acknowledgment would implicate national\\nsecurity, as discussed below, nothing about the government’s\\nparticipation in discovery would constitute governmental\\nacknowledgement or denial of the site’s existence.\\n\\n 16\\n Despite so concluding, the district court inconsistently determined\\nat step three of the Reynolds analysis that the government’s participation\\nin discovery would constitute implicit governmental acknowledgment of\\nthe program. As discussed herein, see infra at n.18, we do not share that\\nassessment.\\n\\n20 HUSAYN V. UNITED STATES\\n\\n“cause grave damage to national security.” Al-Haramain,\\n507 F.3d at 1195. First, we agree with the district court and\\nPetitioners that in order to be a “state secret,” a fact must first\\nbe a “secret.” In other contexts where the state secrets\\nprivilege was applied, the privilege was used to withhold\\ninformation that was not publicly accessible. See Mohamed,\\n614 F.3d at 1087 (“We are precluded from explaining\\nprecisely which matters the privilege covers lest we\\njeopardize the secrets we are bound to protect.”); id. at 1095\\n(Hawkins, J., joined by Schroeder, J., Canby, J., Thomas, J.,\\nand Paez, J., dissenting) (describing onerous procedure\\nundertaken to preserve a “‘cone of silence’ environment” for\\nus to review the sealed record en banc); Al-Haramain,\\n507 F.3d at 1203 (concluding that the “Sealed Document is\\nprotected by the state secrets privilege” after reviewing it in\\ncamera); Kasza v. Browner, 133 F.3d 1159, 1170 (9th Cir.\\n1998) (“Based on our in camera review of both General\\nMoorman’s and Secretary Widnall’s classified declarations,\\n. . . [w]e are convinced that release of such information\\nwould reasonably endanger national security interests.”).\\nInsofar as the government asserts privilege over the basic\\nfact that the CIA detained Abu Zubaydah in Poland and that\\nhe was subjected to torture there, this certainly does not\\nprotect the disclosure of secret information, but rather\\nprevents the discussion of already disclosed information in a\\nparticular case.\\n\\n We note that the discovery request here comes indirectly\\nfrom current Polish authorities, specifically, prosecutors\\nwho have been tasked by the ECHR and the Polish\\ngovernment to investigate the circumstances surrounding\\nAbu Zubaydah’s detention in Poland. This is significant for\\ntwo reasons. First, it reaffirms our conclusion that the fact\\nthat the CIA operated in Poland and possibly collaborated\\nwith Polish individuals over Abu Zubaydah’s detention is\\n\\n HUSAYN V. UNITED STATES 21\\n\\nnot a secret that would harm national security. Cf. Al-\\nHaramain, 507 F.3d at 1200 (noting how details given\\nthrough “voluntary disclosures made by various officials”\\nare not state secrets). Second, it undermines the asserted\\nnational security risks outlined by Pompeo’s declarations,\\nsuch as breaching trust with the cooperating country or\\ngenerating backlash in that country. While we recognize the\\nlegitimacy of these concerns, they appear less of a concern\\nwhen the other country—here, Poland—is investigating\\ncriminal liability of the subject matter involved in this\\ndiscovery application.\\n\\n Last, we emphasize the importance of striking “an\\nappropriate balance . . . between protecting national security\\nmatters and preserving an open court system.” Id. at 1203.\\nWhile it is essential to guard the courts from becoming\\nconduits for undermining the executive branch’s control\\nover information related to national security, these concerns\\ndo not apply when the alleged state secret is no secret at all,\\nbut rather a matter that is sensitive or embarrassing to the\\ngovernment. In other words, the rationale behind the state\\nsecrets privilege is to protect legitimate government\\ninterests, not to shield the government from uncomfortable\\nfacts that may be disclosed or discussed in litigation.\\nProtecting the former is an unfortunate necessity in our\\ncomplicated world of national and international affairs.\\nProtecting the latter is inconsistent with the principle of an\\nindependent judiciary.\\n\\n Reviewing Petitioners’ request for documents, we agree\\nwith the district court that much, although not all, of the\\ninformation requested by Petitioners is covered by the state\\nsecrets privilege. For instance, documents, memoranda, and\\ncorrespondence about the identities and roles of foreign\\nindividuals involved with the detention facility, operational\\n\\n22 HUSAYN V. UNITED STATES\\n\\ndetails about the facility, and any contracts made with Polish\\ngovernment officials or private persons residing in Poland\\nmight implicate the CIA’s intelligence gathering efforts. As\\nexplained in the Pompeo declaration, disclosure of the\\nidentities of foreign nationals who work with the CIA risks\\ndamaging the intelligence relationship and compromising\\ncurrent and future counterterrorism operations.\\n\\n Nonetheless, we also agree with the district court that a\\nsubset of information is not—at least in broad strokes—a\\nstate secret, namely: the fact that the CIA operated a\\ndetention facility in Poland in the early 2000s; information\\nabout the use of interrogation techniques and conditions of\\nconfinement in that detention facility; and details of Abu\\nZubaydah’s treatment there. These facts have been in the\\npublic eye for some years now, and we find no reason to\\nbelieve that Mitchell and Jessen testifying about these facts\\n“will expose . . . matters which, in the interest of national\\nsecurity, should not be divulged.” Reynolds, 345 U.S. at 10.\\nWe therefore reject the government’s blanket assertion of\\nstate secrets privilege over everything in Petitioners’\\ndiscovery request. See Fazaga, 1202 F.3d at 1228\\n(reiterating “caution[] that courts should work ‘to ensure that\\nthe state secrets privilege is asserted no more frequently and\\nsweepingly than necessary.’” (quoting Mohamed, 614 F.3d\\nat 1082)).\\n\\n C.\\n\\n At step three of the Reynolds analysis, we face the more\\ndifficult task of determining how the matter should proceed\\nin light of a successful claim of privilege. 17 Mohamed,\\n\\n 17\\n As the dissent notes, our main disagreement is at the third\\nReynolds step. Dissent at 30. The dissent’s concern about “walking\\n\\n HUSAYN V. UNITED STATES 23\\n\\n614 F.3d at 1082. We have held that, “whenever possible,\\nsensitive information must be disentangled from\\nnonsensitive information to allow for release of the latter.”\\nId. (original alterations omitted) (quoting Kasza, 133 F.3d\\nat 1166; Ellsberg, 709 F.2d at 57). There are three limited\\ncircumstances in which a successful claim of privilege\\nrequires outright termination of the case: (1) where the\\nplaintiff cannot prove the prima facie elements of the claim\\nwith nonprivileged evidence; (2) where the privilege\\ndeprives that defendant of information that would have\\notherwise given the defendant a valid defense to the claim;\\nor (3) where the claims and defenses might theoretically be\\nestablished without relying on the privileged evidence, but\\n“it may be impossible to proceed with the litigation\\nbecause—privileged evidence being inseparable from\\nnonprivileged information that will be necessary to the\\nclaims or defenses—litigating the case to a judgment on the\\nmerits would present an unacceptable risk of disclosing state\\nsecrets.” Id. at 1083.\\n\\n\\nclose” to “the line of actual state secrets” simply does not reflect the test\\nfrom Mohamed, which requires that nonsensitive information be released\\n“whenever possible.” Compare Dissent at 31, with Mohamed, 614 F.3d\\nat 1087–89. The dissent also asserts, without any support, that the\\nReynolds step two analysis must also take into consideration the fact that\\nthe information sought here is ultimately destined for a foreign tribunal\\nin Poland. Dissent at 34. A state secret, however, is a state secret in any\\nforum, domestic or foreign. The crux of the question is whether “there\\nis a reasonable danger that compulsion of the evidence will expose . . .\\nmatters which, in the interest of national security, should not be\\ndivulged.” Reynolds, 345 U.S. at 10. Moreover, the dissent’s analysis\\nof Reynolds fails to consider the district court’s authority to decide\\nwhether discovery should be provided to Petitioners in the first instance.\\nOnly then would Petitioners be able to provide any information to a\\nforeign tribunal.\\n\\n24 HUSAYN V. UNITED STATES\\n\\n The district court properly identified the third\\ncircumstance as the only one potentially applicable to a\\ndiscovery proceeding such as this case. We agree with\\nPetitioners, however, that it is not impossible to separate\\nsecret information, and that the district court was too quick\\nto quash the subpoenas and dismiss the case in its entirety. 18\\n\\n Unlike our prior cases, this case is a pure discovery\\nmatter where there are no claims to prove or defenses to\\nassert. 19 See Mohamed, 614 F.3d at 1075, 1093 (dismissing\\n\\n 18\\n The district court determined that the government’s\\nacknowledgment of the existence of a CIA facility in Poland would not\\nimplicate a state secret, a conclusion we need not address nor that we\\nnecessarily share. See supra at n.15. The district court nonetheless\\nproceeded to find dismissal appropriate under Reynolds step three\\nbecause, given that Petitioners made clear that they seek information\\nabout Poland, “the Government participating could be viewed as implicit\\nconfirmation of operation of the Program in Poland.” As mentioned\\nabove, we reject that determination. See supra at n.16. The district\\ncourt’s inconsistent and erroneous view of the effect of the government’s\\nparticipation in discovery was fundamental to the court’s conclusion that\\nthis case should be dismissed outright. The district court found that\\nimplicit government acknowledgment, although “seemingly innocuous,”\\nwas intertwined with state secrets. As we already noted, however,\\nnothing about the government’s participation in this case would\\nconstitute official acknowledgment, implicit or otherwise. Thus, the\\ndistrict court’s Reynolds step three conclusion was based entirely upon a\\nfaulty predicate.\\n 19\\n For this reason, the dissent’s reliance on Mohamed, Al-Haramain,\\nand Kasza is off-base. In those cases, plaintiffs sought information that\\nbelonged to what the courts deemed a “classified mosaic.” Kasza,\\n133 F.3d at 1166. The courts were able to reach that conclusion because\\nthey all underwent the process of reviewing the contested material to\\ndetermine that there was privileged information that could not be\\ndisentangled. See Mohamed, 614 F.3d at 1095; Al-Haramain, 507 F.3d\\nat 1203; Kasza, 133 F.3d at 1170. That was an essential predicate to the\\ncourts’ dismissal at step three of the Reynolds analysis. See, e.g.,\\n\\n HUSAYN V. UNITED STATES 25\\n\\nsuit against a U.S. corporation under the Alien Tort Statute\\nbased on its alleged involvement in the CIA extraordinary\\nrendition program); Al-Haramain, 507 F.3d at 1205\\n(dismissing lawsuit against the United States because\\nplaintiffs could not show standing without privileged\\ndocument); Kasza, 133 F.3d at 1162–63 (affirming dismissal\\nof citizen suits against the U.S. Air Force and Environmental\\nProtection agency). Section 1782 provides the district court\\ndiscretion to order an individual to give deposition testimony\\nor produce documents for use in a foreign proceeding\\nprovided it does not violate “any legally applicable\\nprivilege.” 28 U.S.C. § 1782(a). The government does not\\nchallenge the district court’s exercise of that discretion or\\napplication of the Intel factors. See supra at n.13. By the\\nterms of the statute, Petitioners can pursue any nonprivileged\\ndiscovery within the parameters set by the district court. 20\\n\\n\\nMohamed, 614 F.3d at 1087 (“We have thoroughly considered plaintiffs’\\nclaims, several possible defenses and the prospective path of this\\nlitigation. We also have carefully and skeptically reviewed the\\ngovernment’s classified submissions . . . We rely heavily on these\\nsubmissions, which describe the state secrets implicated here, the harm\\nto national security that the government believes would result from\\nexplicit or implicit disclosure and the reasons why, in the government’s\\nview, further litigation would risk that disclosure.”).\\n\\n Conversely, here, neither the district court nor we have had any\\noccasion to review the contested material to reach that threshold\\nquestion. Given the limited factual record, the dissent repeats the same\\nerror that the district court made by assuming the truth of the\\ngovernment’s assertions—that it would not be possible to disentangle the\\nprivileged from nonprivileged—without first invoking available\\ndiscovery tools as required by Mohamed. See 614 F.3d at 1089.\\n 20\\n We agree with Petitioners that, to the extent the district court\\ndenied discovery because disclosure of some information “would not\\nseem to aid the Polish investigation,” the district court erred by imposing\\n\\n26 HUSAYN V. UNITED STATES\\n\\n Moreover, the record suggests that Petitioners can obtain\\nnonprivileged information from Mitchell and Jessen. At the\\ndistrict court, Petitioners argued:\\n\\n [W]e are here in order to understand the story\\n around [Abu Zubaydah’s claims in Poland]\\n . . . You know, what was the narrative, what\\n sort of treatment was Mr. Zubaydah\\n subjected to, what was the feeding regime,\\n how was he held, what medical care was he\\n given, and of course, yes, we want to know if\\n locals were involved in that and to what\\n extent.\\n\\n ...\\n\\n Now, ideally, Your Honor, because we think\\n that these are not state secrets at this point in\\n time, we would prefer that Mitchell and\\n Jessen be permitted to testify as to the\\n identities of people and where it occurred.\\n But the prosecutor already knows where the\\n events occurred and my suspicion is he has a\\n good idea, although I’m not privy to the\\n specifics of his investigation, of who, you\\n know, who his targets are.\\n\\nEven if Mitchell and Jessen are restricted from disclosing\\nstate secrets such as the identities of individuals involved\\nwith the detention facility, the non-secret information in\\n\\n\\nan extraneous requirement upon Petitioners. Whether discoverable\\ninformation may or may not be “useful” in foreign proceedings has no\\nbearing on whether the information is privileged.\\n\\n HUSAYN V. UNITED STATES 27\\n\\ntheir possession could provide context to Polish prosecutors\\nor corroborate prosecutors’ independent investigations.\\n\\n More importantly, we conclude that the district court did\\nnot adequately attempt to disentangle the privileged from\\nnonprivileged information. 21 As we noted in Mohamed, “the\\nstandards for peremptory dismissal are very high and it is the\\ndistrict court’s role to use its fact-finding and other tools to\\nfull advantage before it concludes that the rare step of\\ndismissal is justified.” 614 F.3d at 1092–93; see also\\nReynolds, 345 U.S. at 11–12 (remanding for further\\nproceedings where plaintiffs potentially could pursue their\\ntort action without using material touching upon military\\nsecrets); cf. Heraeus, 633 F.3d at 597 (noting that once the\\ndistrict court grants a section 1782 application, “the ordinary\\ntools of discovery management . . . come into play”).\\n\\n Mitchell and Jessen have already provided nonprivileged\\ninformation similar to that sought here in the Salim lawsuit\\nbefore the district court, illustrating the viability of this\\ndisentanglement. Excerpts of those depositions were\\nincluded in the record and reflect how depositions could\\nproceed in this case, such as with the use of code names and\\n\\n\\n 21\\n See supra at n.18. This is an essential point that the dissent\\noverlooks: where Reynolds privilege is successfully asserted at steps one\\nand two, the default at step three is nonetheless to “whenever possible\\n. . . disentangle[] [the sensitive information] from nonsensitive\\ninformation to allow for the release of the latter.” Kasza, 133 F.3d\\nat 1166 (quoting Ellsberg, 709 F.2d at 57); see also Mohamed, 614 F.3d\\nat 1089 (“Dismissal at the pleading stage under Reynolds is a drastic\\nresult and should not be readily granted.”). The dissent would flip the\\ndefault to dismissal, unless Petitioners met a newly imposed burden to\\ndemonstrate a specific plan for disentanglement.\\n\\n28 HUSAYN V. UNITED STATES\\n\\npseudonyms, where appropriate. 22 While this no doubt\\nimposes a burden on the government to participate in\\ndiscovery and object, where appropriate, 23 we have stressed\\nthat cases should be dismissed only “in the[] rare\\ncircumstances” that the district court is not able to employ\\nprotective procedures to prevent disclosure of state secrets.\\nMohamed, 614 F.3d at 1089. We are not convinced that\\nthose rare circumstances exist here. On remand, the district\\ncourt may use the Pompeo declarations as a guide while\\nemploying tools such as in camera review, protective orders,\\nand restrictions on testimony, see id., in tailoring the scope\\nof Mitchell’s and Jessen’s deposition and the documents\\nthey may be required to produce.\\n\\n IV.\\n\\n We have grappled with the state secrets privilege on only\\nrare occasions. Given that the district court had only Kasza,\\nAl-Haramain and Mohamed as guides in conducting its\\nReynolds analysis, we can understand why the district court\\nwas so quick to dismiss the proceedings at the third step. The\\ncourt’s hasty dismissal, however, overlooked our “special\\nburden to assure . . . that an appropriate balance is struck\\nbetween protecting national security matters and preserving\\n\\n\\n\\n 22\\n The dissent attempts to distinguish the situation in Salim and faults\\nPetitioners for not presenting a viable disentanglement plan to the district\\ncourt. Dissent at 32–33. Again, this disregards the fact that the district\\ncourt never engaged in any disentanglement process or assessed what\\nprotective measures could be utilized to accomplish disentanglement.\\n 23\\n Eight U.S. government attorneys or experts were present at the\\ndepositions of Mitchell and Jessen in Salim to ensure that nothing\\nconfidential or privileged would be disclosed.\\n\\n HUSAYN V. UNITED STATES 29\\n\\nan open court system,” Mohamed, 614 F.3d at 1081 (quoting\\nAl-Haramain, 507 F.3d at 1203).\\n\\n Our holding is a limited one: if, upon reviewing disputed\\ndiscovery and meaningfully engaging the panoply of tools at\\nits disposal, the district court determines that it is not\\npossible to disentangle the privileged from nonprivileged, it\\nmay again conclude that dismissal is appropriate at step three\\nof the Reynolds analysis. However, the district court may\\nnot skip directly to dismissal without doing more. “[A]s\\njudges, we strive to honor all of these principles [of justice,\\ntransparency, accountability and national security],” and\\nwhile “there are times when exceptional circumstances\\ncreate an irreconcilable conflict between them,” id. at\\n1073—on the limited record before us, this is not one of\\nthose times.\\n\\n The world has moved on since we discussed the state\\nsecrets privilege in Mohamed. In the near decade that has\\npassed, we have engaged in a public debate over the CIA’s\\nconduct during the early years of the war on terror. The\\ndistrict court correctly recognized that the state secrets\\nprivilege did not cover all the discovery sought by\\nPetitioners, but failed to recognize that complete dismissal\\nbased on the state secrets privilege is reserved only for “rare\\ncases.” Id. at 1092.\\n\\n REVERSED and REMANDED for further\\nproceedings.\\n\\n30 HUSAYN V. UNITED STATES\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4467,"cells":{"id":{"kind":"number","value":4662035,"string":"4,662,035"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Jose Cruz Pleitez v. William Barr"},"decision_date":{"kind":"string","value":"2019-09-18"},"docket_number":{"kind":"string","value":"15-72876"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Mary M. Schroeder and Susan P. Graber, Circuit Judges, and Michael H. Watson,** District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"GRABER, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\n JOSE CRISTOBAL CRUZ PLEITEZ, No. 15-72876\\n Petitioner,\\n Agency No.\\n v. A074-803-846\\n\\n WILLIAM P. BARR, Attorney\\n General, OPINION\\n Respondent.\\n\\n\\n On Petition for Review of an Order of the\\n Board of Immigration Appeals\\n\\n Submitted August 14, 2019*\\n Pasadena, California\\n\\n Filed September 18, 2019\\n\\n Before: Mary M. Schroeder and Susan P. Graber, Circuit\\n Judges, and Michael H. Watson,** District Judge.\\n\\n Opinion by Judge Graber\\n\\n\\n\\n *\\n The panel unanimously concludes that this case is suitable for\\ndecision without oral argument. Fed. R. App. P. 34(a)(2).\\n **\\n The Honorable Michael H. Watson, United States District Judge for\\nthe Southern District of Ohio, sitting by designation.\\n\\f2 CRUZ PLEITEZ V. BARR\\n\\n SUMMARY***\\n\\n\\n Immigration\\n\\n Denying Fernando Jose Cristobal Cruz Pleitez’ petition\\nfor review of a decision of the Board of Immigration Appeals\\ndenying his motion to reopen his 1996 in absentia deportation\\norder, the panel held that the notice Petitioner received of his\\nhearing comported with regulatory requirements and due\\nprocess, and rejected his argument that he did not receive\\nproper notice because he was 16 years old at the time he was\\nserved and no adult was served with the Order to Show Cause\\nand Notice of Hearing (“OSC”).\\n\\n Petitioner entered the United States without inspection at\\nthe age of 10 and affirmatively applied for asylum in 1996\\nwhen he was 16 years old. An asylum officer referred his\\ncase to immigration court, and the former Immigration and\\nNaturalization Service (“INS”) served him with an OSC\\nproviding the date, time, and location of his deportation\\nhearing. The OSC was sent by certified mail and included a\\nreturn receipt, which Petitioner signed. When Petitioner did\\nnot appear for his hearing, an immigration judge ordered him\\ndeported in absentia.\\n\\n In 2014, Petitioner filed a motion to reopen, arguing that\\nnotice to him only, without notice to a responsible adult,\\nviolated his rights. The immigration judge denied\\nPetitioner’s motion, and the BIA dismissed his appeal.\\n\\n\\n ***\\n This summary constitutes no part of the opinion of the court. It has\\nbeen prepared by court staff for the convenience of the reader.\\n\\f CRUZ PLEITEZ V. BARR 3\\n\\n At the relevant time, a regulation provided that notice to\\na minor under 14 years of age had to be made on a person\\nwith whom the minor resided, but no statute or regulation\\nestablished a special method of serving a minor older than 14.\\nHowever, in Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th\\nCir. 2004), this court held that, when a minor was detained\\nfor illegally entering the United States and then released into\\nthe custody of an adult relative, the only reasonable\\ninterpretation of the regulations at issue required that INS\\nserve notice to both the juvenile and to the person to whom\\nthe regulation authorized release.\\n\\n The panel held that Flores-Chavez does not extend to\\nsituations in which a minor over the age of 14 was never\\ndetained or released to an adult by the INS and in which he\\ninitiated proceedings by filing an affirmative request for\\nrelief. The panel explained that Flores-Chavez’\\ncircumstances and Petitioner’s circumstances differed\\nsignificantly: Petitioner was not detained, filed an affirmative\\napplication for asylum and was 16 years old when served his\\nOSC, whereas Flores-Chavez was detained and released into\\nthe care of a responsible adult and was 15 when he was\\nserved his OSC. The panel also noted that the relevant\\nregulations differed, too, because Petitioner was not detained.\\n\\n Applying the test outlined in Mathews v. Eldridge, 424\\nU.S. 319 (1976), the panel further concluded that the notice\\nPetitioner received comported with due process. Balancing\\nall the factors, the panel explained that the burden on the\\ngovernment of providing notice to a responsible adult living\\nwith a juvenile over the age of 14 outweighed the interest of\\nnever-detained minors over the age of 14, at least those who\\nhad filed an affirmative request for relief.\\n\\f4 CRUZ PLEITEZ V. BARR\\n\\n COUNSEL\\n\\nFrank E. Ronzio, Ronzio & Associates, Los Angeles,\\nCalifornia, for Petitioner.\\n\\nVirginia L. Gordon, Trial Attorney; Terri J. Scadron,\\nAssistant Director; Office of Immigration Litigation, Civil\\nDivision, United States Department of Justice, Washington,\\nD.C.; for Respondent.\\n\\n\\n OPINION\\n\\nGRABER, Circuit Judge:\\n\\n Petitioner Jose Cristobal Cruz Pleitez, a native and citizen\\nof El Salvador, seeks review of the Board of Immigration\\nAppeals’ (“BIA”) decision denying his 2014 motion to\\nreopen. Petitioner arrived in the United States in 1990. He\\naffirmatively applied for asylum in 1996 and was served with\\nan Order to Show Cause and Notice of Hearing (“OSC”), but\\nhe failed to appear at his hearing. An immigration judge\\n(“IJ”) ordered Petitioner deported in absentia. As relevant\\nhere, Petitioner argues that he did not receive proper notice of\\nthe hearing because he was 16 years old in 1996 and no adult\\nwas served with the OSC. We hold that the notice given here\\ncomported with both regulatory requirements and due\\nprocess.1 Accordingly, we deny the petition for review.\\n\\n\\n\\n\\n 1\\n We resolve additional issues in a memorandum disposition filed this\\ndate.\\n\\f CRUZ PLEITEZ V. BARR 5\\n\\n FACTUAL AND PROCEDURAL HISTORY\\n\\n In 1990, at the age of 10, Petitioner entered the United\\nStates without inspection. In 1996, he affirmatively sought\\nasylum. An asylum officer interviewed Petitioner and\\nreferred his case to immigration court.\\n\\n The former Immigration and Naturalization Service\\n(“INS”) served Petitioner, who was 16 years old at the time,\\nwith an OSC, which provided the date, time, and location of\\ndeportation proceedings. The OSC was sent by certified mail\\nand included a return receipt, which Petitioner signed on July\\n25, 1996.\\n\\n But Petitioner did not appear for his deportation\\nproceeding and, on October 15, 1996, an IJ ordered him\\ndeported in absentia. In 2014, Petitioner filed a motion to\\nreopen, seeking to rescind the deportation order. In his\\nmotion, Petitioner raised several issues, including a claim that\\nnotice to him only, without notice to a responsible adult,\\nviolated his rights under the principles announced in Flores-\\nChavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004). There, we\\nheld that, when a minor is detained for illegally entering the\\nUnited States and then released into the custody of an adult\\nrelative, “the only reasonable interpretation of the regulations\\nat issue requires that the [INS] serve notice to both the\\n‘juvenile’ . . . and to the person to whom the regulation\\nauthorizes release.” Id. at 1153.\\n\\n The IJ denied Petitioner’s motion. Petitioner timely\\nappealed to the BIA, which dismissed the appeal. As relevant\\nhere, the BIA ruled that Flores-Chavez does not control\\nbecause Petitioner, unlike Flores-Chavez, presented no\\nevidence showing that he had ever been detained and then\\n\\f6 CRUZ PLEITEZ V. BARR\\n\\nreleased by INS into the custody of a responsible adult.\\nPetitioner timely seeks our review.\\n\\n STANDARDS OF REVIEW\\n\\n When “the BIA conducts its own review of the evidence\\nand law, rather than adopting the IJ’s decision, our review is\\nlimited to the BIA’s decision, except to the extent the IJ’s\\nopinion is expressly adopted.” Zumel v. Lynch, 803 F.3d 463,\\n471 (9th Cir. 2015) (internal quotation marks omitted). We\\nreview the denial of a motion to reopen for abuse of\\ndiscretion. Salim v. Lynch, 831 F.3d 1133, 1137 (9th Cir.\\n2016). “The BIA abuses its discretion when its decision is\\narbitrary, irrational, or contrary to law.” Bonilla v. Lynch,\\n840 F.3d 575, 581 (9th Cir. 2016) (internal quotation marks\\nomitted). But we review de novo due process claims.\\nVilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012).\\n\\n DISCUSSION\\n\\n Former 8 U.S.C. § 1252b(c)(3)2 provided that an in\\nabsentia deportation order\\n\\n may be rescinded only—\\n\\n (A) upon a motion to reopen filed within\\n 180 days after the date of the order of\\n deportation if the alien demonstrates that the\\n failure to appear was because of exceptional\\n circumstances (as defined in subsection (f)(2)\\n of this section), or\\n\\n 2\\n The INA provision relating to removal proceedings conducted in\\nabsentia is now located at 8 U.S.C. § 1229a(b)(5).\\n\\f CRUZ PLEITEZ V. BARR 7\\n\\n (B) upon a motion to reopen filed at any\\n time if the alien demonstrates that the alien\\n did not receive notice in accordance with\\n subsection (a)(2) of this section or the alien\\n demonstrates that the alien was in Federal or\\n State custody and did not appear through no\\n fault of the alien.\\n\\n Petitioner did not file his motion to reopen within\\n180 days after the IJ ordered him deported in absentia, so he\\nis not eligible for relief under subparagraph (A). To\\ndetermine whether Petitioner is eligible for relief under\\nsubparagraph (B), we must decide whether he received\\nnotice in accordance with § 1252b(a)(2):3\\n\\n In deportation proceedings under section\\n 1252 of this title—\\n\\n (A) written notice shall be given in person\\n to the alien (or, if personal service is not\\n practicable, written notice shall be given by\\n certified mail to the alien or to the alien’s\\n counsel of record, if any), in the order to show\\n cause or otherwise, of—\\n\\n (i) the time and place at which the\\n proceedings will be held, and\\n\\n (ii) the consequences under subsection (c)\\n of this section of the failure, except under\\n\\n\\n 3\\n Petitioner was not in federal or state custody at the time of notice\\nand, therefore, does not meet the requirements of the second method to\\nreopen under § 1252b(c)(3)(B).\\n\\f8 CRUZ PLEITEZ V. BARR\\n\\n exceptional circumstances, to appear at such\\n proceedings . . . .\\n\\n As noted, Petitioner argues that, because he was 16 years\\nold when he signed the return receipt on the OSC, he received\\ninsufficient notice. Section 1252b(a)(2) does not specify\\nhow a minor receives notice, but former 8 C.F.R.\\n§ 103.5a(c)(2)(ii)4 provided that,\\n\\n in the case of a minor under 14 years of age,\\n service shall be made upon the person with\\n whom the . . . minor resides; whenever\\n possible, service shall also be made on the\\n near relative, guardian, committee, or friend.\\n\\nNo statute or regulation specifically establishes a special\\nmethod for serving a minor who is older than 14.5 Petitioner\\nwas over 14 years of age when he was served with the OSC.\\nIf § 103.5a controls, then the service of the OSC on Petitioner\\nwas proper under the then-extant statutes and regulations.\\n\\n Petitioner counters that service was inadequate under\\nFlores-Chavez. In Flores-Chavez, we analyzed the\\nregulatory framework governing notice to alien minors,\\n\\n\\n\\n 4\\n The subsections in § 103.8 of the current Code of Federal\\nRegulations match those in former § 103.5a. Compare 8 C.F.R. § 103.5a\\n(1997) with 8 C.F.R. § 103.8 (2017). See also Immigration Benefits\\nBusiness Transformation, 76 Fed. Reg. 53,764-01 (Aug. 29, 2011).\\n 5\\n As noted in Flores-Chavez, 362 F.3d at 1158–59, 1158 & n.5, the\\nterms “minor” and “juvenile” are used inconsistently and sometimes\\ninterchangeably in the INS regulations. We use the terms “minor” and\\n“juvenile” in this opinion to refer to any person under the age of 18.\\n\\f CRUZ PLEITEZ V. BARR 9\\n\\nspecifically former 8 C.F.R. § 242.24.6 362 F.3d at 1156–57.\\nFlores-Chavez was 15 years old when the INS served him\\nwith an OSC. Id. at 1153–54. He had been apprehended by\\nthe INS after crossing the border and had been released into\\nthe care and responsibility of an adult relative. Id. at 1154.\\nThe adult relative did not receive the OSC. Id. Flores-\\nChavez was ordered deported in absentia. Id. Seven years\\nlater, Flores-Chavez moved to reopen his deportation\\nproceedings and to rescind the deportation order for lack of\\nnotice. Id. We held that, although the INS had provided\\nFlores-Chavez with the notice required by § 1252b, as an\\nalien minor in INS custody, Flores-Chavez was entitled to\\nadditional notice. Id. at 1156.\\n\\n First, the Flores-Chavez court examined § 242.24, INS’s\\njuvenile detention and release regulation, which defines\\njuveniles as “alien[s] under the age of eighteen (18) years.”\\n8 C.F.R. § 242.24(a), (b)(1) (1997). That regulation also\\nprovides that a responsible adult assumes both custody and\\nresponsibility for a juvenile who is released into that adult’s\\ncare. “The fair implication of § 242.24 as a whole is that any\\nadult to whom an alien juvenile is released is charged with\\nthe dual responsibilities of caring for the juvenile and\\nensuring that the juvenile keeps his obligations to the court.”\\nFlores-Chavez, 362 F.3d at 1156. Because § 242.24\\n“assumes that a juvenile over fourteen is not competent to\\nassure his presence at the hearing, the INS’s service of the\\n\\n\\n 6\\n The subsections in § 236.3 of the current Code of Federal\\nRegulations match those in former § 242.24. Compare 8 C.F.R. § 242.24\\n(1997) with 8 C.F.R. § 236.3 (2017). See also Inspection and Expedited\\nRemoval of Aliens, 62 Fed. Reg. 10,312-01 (Mar. 6, 1997); Apprehension,\\nProcessing, Care, and Custody of Alien Minors and Unaccompanied Alien\\nChildren, 83 Fed. Reg. 45,486-01 (Sept. 7, 2018).\\n\\f10 CRUZ PLEITEZ V. BARR\\n\\ntime and place of the proceedings on only [Flores-Chavez]\\nhimself and not on the adult who took custody of him\\ndeprived [Flores-Chavez] of the effective notice to which he\\nwas legally entitled under § [1252b(a)(2)].” Id. at 1157.\\n\\n Second, the court considered 8 C.F.R. § 103.5a, which\\ngenerally governs the requirements for service of notice on\\naliens. Relevant to this case, § 103.5a(c)(2)(ii) requires\\nservice “upon the person with whom the . . . minor [under 14\\nyears of age] resides.” Flores-Chavez reasoned that its\\nreading of § 242.24 does not conflict with the requirements\\nof service detailed in § 103.5a, noting that § 103.5a does not\\n“purport to address the issue of notice to juveniles in custody\\nwho are released to an adult for an appearance at a future\\nhearing.” 362 F.3d at 1158 (emphasis added).\\n\\n Flores-Chavez’ circumstances and Petitioner’s\\ncircumstances differ significantly. Petitioner was not\\ndetained. And he filed an affirmative application for asylum.\\nSee E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 767\\n(9th Cir. 2018) (citing Dhakal v. Sessions, 895 F.3d 532,\\n536–37 (7th Cir. 2018), for its description of the affirmative\\nasylum process); Dhakal, 895 F.3d at 536 (“A person\\nphysically present in the United States, and not in removal\\nproceedings, may apply affirmatively for asylum . . . .”). The\\napplication stated that Petitioner was not in exclusion or\\ndeportation proceedings, that he had been in the United States\\nfor more than 5 years, and that he had lived for the last\\n5 years at a private residence in California. Additionally,\\nPetitioner was 16 at the time he was served with notice.\\n\\n The relevant regulations differ, too, because Petitioner\\nwas not detained. Thus the question before us is whether\\nFlores-Chavez extends to situations in which a minor over the\\n\\f CRUZ PLEITEZ V. BARR 11\\n\\nage of 14 was never detained or released to an adult by the\\nINS and in which he initiated proceedings by filing an\\naffirmative request for relief. We conclude that the answer is\\n“no.”\\n\\n In addition to resting on an interpretation of the relevant\\nstatutes and regulations, Flores-Chavez concluded that due\\nprocess concerns would arise if the notice in that case were\\ndeemed sufficient. Id. at 1160–62. The due process analysis,\\nlike the regulatory analysis, differs significantly here.\\n\\n Because “[t]he private liberty interests involved in\\ndeportation proceedings are indisputably substantial,”\\nDillingham v. INS, 267 F.3d 996, 1010 (9th Cir. 2001), alien\\nminors “in deportation proceedings are entitled to the fifth\\namendment guaranty of due process,” Larita-Martinez v. INS,\\n220 F.3d 1092, 1095 (9th Cir. 2000) (internal quotation marks\\nomitted). And “parental notification requirements, such as\\nthose established in 8 C.F.R. § 103.5a, further implicate the\\ndue process rights of juveniles, as minors generally cannot\\nappreciate or navigate the rules of or rights surrounding final\\nproceedings that significantly impact their liberty interests.”\\nFlores-Chavez, 362 F.3d at 1160 (citing In re Gault, 387 U.S.\\n1, 33–34 (1967)).\\n\\n Accordingly, we must (as we did in Flores-Chavez) apply\\nthe test outlined in Mathews v. Eldridge, 424 U.S. 319\\n(1976), to analyze whether the regulatory framework provides\\nconstitutionally sufficient notice in the present circumstances.\\nWe must consider,\\n\\n [f]irst, the private interest that will be affected\\n by the official action; second, the risk of an\\n erroneous deprivation of such interest through\\n\\f12 CRUZ PLEITEZ V. BARR\\n\\n the procedures used, and the probable value,\\n if any, of additional or substitute procedural\\n safeguards; and finally, the Government’s\\n interest, including the function involved and\\n the fiscal and administrative burdens that the\\n additional or substitute procedural\\n requirement would entail.\\n\\nId. at 335. Under Mathews, we then balance the affected\\ninterests to assess “whether the administrative procedures\\nprovided here are constitutionally sufficient.” Id. at 334.\\n\\n First, we examine the affected interest of the individual.\\nAs stated in Flores-Chavez,\\n\\n the private interest in receiving notice of\\n pending deportation proceedings is one of\\n grave importance. For over one hundred\\n years, our courts have held that aliens possess\\n due process rights under the Fifth\\n Amendment. See Yamataya v. Fisher,\\n 189 U.S. 86 (1903). An alien facing\\n deportation confronts the loss of a significant\\n liberty interest, as deportation “visits a great\\n hardship on the individual and deprives him\\n of the right to stay and live and work in this\\n land of freedom.” Bridges v. Wixon, 326 U.S.\\n 135, 154 (1945); Dillingham, 267 F.3d\\n at 1010.\\n\\nFlores-Chavez, 362 F.3d at 1161. This factor clearly weighs\\nin favor of Petitioner.\\n\\f CRUZ PLEITEZ V. BARR 13\\n\\n Second, we examine the risk of error and probable value\\nof additional safeguards. We wrote in Flores-Chavez that\\n“the regulatory and statutory framework makes clear [that]\\njuveniles require the assistance of a responsible adult to\\nnavigate the deportation process.” Id. at 1161. We also noted\\nthat “[t]he regulatory framework which includes 8 C.F.R.\\n§ 242.24 contemplates that no minor alien under the age of\\neighteen should be presumed responsible for understanding\\nhis rights and responsibilities in preparing for and appearing\\nat final immigration proceedings.” Id. at 1157. The\\nimmigration laws are complex, and our precedents recognize\\nthat minors face a substantial risk of error in navigating the\\nsystem.\\n\\n Nonetheless, the calculation differs here, and not just\\nbecause Petitioner is slightly older than Flores-Chavez was.\\nPetitioner himself set in motion the procedures leading to his\\nhearing by filing an affirmative asylum application and by\\nappearing before an asylum officer. These facts suggest that\\nthe risk of error in Petitioner’s situation is less than the risk\\nof error in Flores-Chavez’ situation.\\n\\n More importantly, no adult ever entered an agreement\\nwith the government to assume responsibility for Petitioner.\\nIt is unclear with whom Petitioner lived at the time of his\\ndeportation hearing, including whether anyone at his\\nresidence was over the age of 18. It is equally unclear that\\nnotice to an adult living at his residence (if there was one)\\nwould have added any safeguards to the process, because we\\ncannot know whether that adult would have been willing to\\ntake the kind of responsibility that was statutorily assigned in\\nFlores-Chavez. Without researching the details of every\\nminor’s situation, it is impossible to know whether a\\nparticular minor over the age of 14 resides with an adult and,\\n\\f14 CRUZ PLEITEZ V. BARR\\n\\nif so, whether serving the OSC on that adult will be any\\nmore effective in ensuring the minor’s attendance at the\\nhearing than serving notice on the minor.\\n\\n Third, we examine the governmental interest and potential\\nburden. We have observed that “it is to the INS’s great\\nbenefit to have as many juveniles as possible attend their\\nhearings, thus avoiding the expenditures of time and money\\nin locating those ordered deported in absentia.” Flores-\\nChavez, 362 F.3d at 1162. Nonetheless, requiring the\\ngovernment to provide notice to a responsible adult living\\nwith a never-detained juvenile over the age of 14 assumes\\nthat there is such a person and that the person can be\\nidentified.\\n\\n In Flores-Chavez, we reasoned that “the incidental burden\\nincurred by the INS is minimal when compared both with the\\nminor’s interests in understanding his rights and\\nresponsibilities and in appearing at his immigration\\nproceedings, and with the likely effectiveness of proper\\nnotice to the responsible adult in achieving those ends.” Id.\\nIn sharp contrast, here the burden on the government would\\nbe substantial. Unlike in Flores-Chavez, at the time the\\ngovernment serves a never-detained minor over the age of\\n14—particularly one who has affirmatively applied for\\nasylum—with an OSC, it likely never interacted with that\\nminor’s adult relative or guardian. Cf. at 1161–62 (noting\\nthat “[t]he agency could provide the notice when the adult\\narrives to take custody of the minor and could read it\\nsimultaneously to the minor and the adult”). Research would\\nbe required to determine who lives with the minor, what their\\nrelationships to the minor are, and what, if any, responsibility\\nthey might have (or be willing and able to undertake) to\\nensure that the minor appears for immigration proceedings.\\n\\f CRUZ PLEITEZ V. BARR 15\\n\\nSuch a process necessarily would involve material “fiscal and\\nadministrative burdens.” Mathews, 424 U.S. at 335.\\n\\n Balancing all the factors, the burden on the government\\noutweighs the interest of never-detained minors over the age\\nof 14, at least those who have filed an affirmative request for\\nrelief. The BIA did not violate due process, and Petitioner’s\\nnotice was sufficient.\\n\\n Petition DENIED.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4439288/\", \"author_raw\": \"GRABER, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"MARY M SCHROEDER"},"judge2":{"kind":"string","value":"SUSAN P GRABER"},"judge3":{"kind":"string","value":"MICHAEL H WATSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4662035/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Jose Cruz Pleitez v. William Barr\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n JOSE CRISTOBAL CRUZ PLEITEZ, No. 15-72876\n Petitioner,\n Agency No.\n v. A074-803-846\n\n WILLIAM P. BARR, Attorney\n General, OPINION\n Respondent.\n\n\n On Petition for Review of an Order of the\n Board of Immigration Appeals\n\n Submitted August 14, 2019*\n Pasadena, California\n\n Filed September 18, 2019\n\n Before: Mary M. Schroeder and Susan P. Graber, Circuit\n Judges, and Michael H. Watson,** District Judge.\n\n Opinion by Judge Graber\n\n\n\n *\n The panel unanimously concludes that this case is suitable for\ndecision without oral argument. Fed. R. App. P. 34(a)(2).\n **\n The Honorable Michael H. Watson, United States District Judge for\nthe Southern District of Ohio, sitting by designation.\n\f2 CRUZ PLEITEZ V. BARR\n\n SUMMARY***\n\n\n Immigration\n\n Denying Fernando Jose Cristobal Cruz Pleitez’ petition\nfor review of a decision of the Board of Immigration Appeals\ndenying his motion to reopen his 1996 in absentia deportation\norder, the panel held that the notice Petitioner received of his\nhearing comported with regulatory requirements and due\nprocess, and rejected his argument that he did not receive\nproper notice because he was 16 years old at the time he was\nserved and no adult was served with the Order to Show Cause\nand Notice of Hearing (“OSC”).\n\n Petitioner entered the United States without inspection at\nthe age of 10 and affirmatively applied for asylum in 1996\nwhen he was 16 years old. An asylum officer referred his\ncase to immigration court, and the former Immigration and\nNaturalization Service (“INS”) served him with an OSC\nproviding the date, time, and location of his deportation\nhearing. The OSC was sent by certified mail and included a\nreturn receipt, which Petitioner signed. When Petitioner did\nnot appear for his hearing, an immigration judge ordered him\ndeported in absentia.\n\n In 2014, Petitioner filed a motion to reopen, arguing that\nnotice to him only, without notice to a responsible adult,\nviolated his rights. The immigration judge denied\nPetitioner’s motion, and the BIA dismissed his appeal.\n\n\n ***\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f CRUZ PLEITEZ V. BARR 3\n\n At the relevant time, a regulation provided that notice to\na minor under 14 years of age had to be made on a person\nwith whom the minor resided, but no statute or regulation\nestablished a special method of serving a minor older than 14.\nHowever, in Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th\nCir. 2004), this court held that, when a minor was detained\nfor illegally entering the United States and then released into\nthe custody of an adult relative, the only reasonable\ninterpretation of the regulations at issue required that INS\nserve notice to both the juvenile and to the person to whom\nthe regulation authorized release.\n\n The panel held that Flores-Chavez does not extend to\nsituations in which a minor over the age of 14 was never\ndetained or released to an adult by the INS and in which he\ninitiated proceedings by filing an affirmative request for\nrelief. The panel explained that Flores-Chavez’\ncircumstances and Petitioner’s circumstances differed\nsignificantly: Petitioner was not detained, filed an affirmative\napplication for asylum and was 16 years old when served his\nOSC, whereas Flores-Chavez was detained and released into\nthe care of a responsible adult and was 15 when he was\nserved his OSC. The panel also noted that the relevant\nregulations differed, too, because Petitioner was not detained.\n\n Applying the test outlined in Mathews v. Eldridge, 424\nU.S. 319 (1976), the panel further concluded that the notice\nPetitioner received comported with due process. Balancing\nall the factors, the panel explained that the burden on the\ngovernment of providing notice to a responsible adult living\nwith a juvenile over the age of 14 outweighed the interest of\nnever-detained minors over the age of 14, at least those who\nhad filed an affirmative request for relief.\n\f4 CRUZ PLEITEZ V. BARR\n\n COUNSEL\n\nFrank E. Ronzio, Ronzio & Associates, Los Angeles,\nCalifornia, for Petitioner.\n\nVirginia L. Gordon, Trial Attorney; Terri J. Scadron,\nAssistant Director; Office of Immigration Litigation, Civil\nDivision, United States Department of Justice, Washington,\nD.C.; for Respondent.\n\n\n OPINION\n\nGRABER, Circuit Judge:\n\n Petitioner Jose Cristobal Cruz Pleitez, a native and citizen\nof El Salvador, seeks review of the Board of Immigration\nAppeals’ (“BIA”) decision denying his 2014 motion to\nreopen. Petitioner arrived in the United States in 1990. He\naffirmatively applied for asylum in 1996 and was served with\nan Order to Show Cause and Notice of Hearing (“OSC”), but\nhe failed to appear at his hearing. An immigration judge\n(“IJ”) ordered Petitioner deported in absentia. As relevant\nhere, Petitioner argues that he did not receive proper notice of\nthe hearing because he was 16 years old in 1996 and no adult\nwas served with the OSC. We hold that the notice given here\ncomported with both regulatory requirements and due\nprocess.1 Accordingly, we deny the petition for review.\n\n\n\n\n 1\n We resolve additional issues in a memorandum disposition filed this\ndate.\n\f CRUZ PLEITEZ V. BARR 5\n\n FACTUAL AND PROCEDURAL HISTORY\n\n In 1990, at the age of 10, Petitioner entered the United\nStates without inspection. In 1996, he affirmatively sought\nasylum. An asylum officer interviewed Petitioner and\nreferred his case to immigration court.\n\n The former Immigration and Naturalization Service\n(“INS”) served Petitioner, who was 16 years old at the time,\nwith an OSC, which provided the date, time, and location of\ndeportation proceedings. The OSC was sent by certified mail\nand included a return receipt, which Petitioner signed on July\n25, 1996.\n\n But Petitioner did not appear for his deportation\nproceeding and, on October 15, 1996, an IJ ordered him\ndeported in absentia. In 2014, Petitioner filed a motion to\nreopen, seeking to rescind the deportation order. In his\nmotion, Petitioner raised several issues, including a claim that\nnotice to him only, without notice to a responsible adult,\nviolated his rights under the principles announced in Flores-\nChavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004). There, we\nheld that, when a minor is detained for illegally entering the\nUnited States and then released into the custody of an adult\nrelative, “the only reasonable interpretation of the regulations\nat issue requires that the [INS] serve notice to both the\n‘juvenile’ . . . and to the person to whom the regulation\nauthorizes release.” Id. at 1153.\n\n The IJ denied Petitioner’s motion. Petitioner timely\nappealed to the BIA, which dismissed the appeal. As relevant\nhere, the BIA ruled that Flores-Chavez does not control\nbecause Petitioner, unlike Flores-Chavez, presented no\nevidence showing that he had ever been detained and then\n\f6 CRUZ PLEITEZ V. BARR\n\nreleased by INS into the custody of a responsible adult.\nPetitioner timely seeks our review.\n\n STANDARDS OF REVIEW\n\n When “the BIA conducts its own review of the evidence\nand law, rather than adopting the IJ’s decision, our review is\nlimited to the BIA’s decision, except to the extent the IJ’s\nopinion is expressly adopted.” Zumel v. Lynch, 803 F.3d 463,\n471 (9th Cir. 2015) (internal quotation marks omitted). We\nreview the denial of a motion to reopen for abuse of\ndiscretion. Salim v. Lynch, 831 F.3d 1133, 1137 (9th Cir.\n2016). “The BIA abuses its discretion when its decision is\narbitrary, irrational, or contrary to law.” Bonilla v. Lynch,\n840 F.3d 575, 581 (9th Cir. 2016) (internal quotation marks\nomitted). But we review de novo due process claims.\nVilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012).\n\n DISCUSSION\n\n Former 8 U.S.C. § 1252b(c)(3)2 provided that an in\nabsentia deportation order\n\n may be rescinded only—\n\n (A) upon a motion to reopen filed within\n 180 days after the date of the order of\n deportation if the alien demonstrates that the\n failure to appear was because of exceptional\n circumstances (as defined in subsection (f)(2)\n of this section), or\n\n 2\n The INA provision relating to removal proceedings conducted in\nabsentia is now located at 8 U.S.C. § 1229a(b)(5).\n\f CRUZ PLEITEZ V. BARR 7\n\n (B) upon a motion to reopen filed at any\n time if the alien demonstrates that the alien\n did not receive notice in accordance with\n subsection (a)(2) of this section or the alien\n demonstrates that the alien was in Federal or\n State custody and did not appear through no\n fault of the alien.\n\n Petitioner did not file his motion to reopen within\n180 days after the IJ ordered him deported in absentia, so he\nis not eligible for relief under subparagraph (A). To\ndetermine whether Petitioner is eligible for relief under\nsubparagraph (B), we must decide whether he received\nnotice in accordance with § 1252b(a)(2):3\n\n In deportation proceedings under section\n 1252 of this title—\n\n (A) written notice shall be given in person\n to the alien (or, if personal service is not\n practicable, written notice shall be given by\n certified mail to the alien or to the alien’s\n counsel of record, if any), in the order to show\n cause or otherwise, of—\n\n (i) the time and place at which the\n proceedings will be held, and\n\n (ii) the consequences under subsection (c)\n of this section of the failure, except under\n\n\n 3\n Petitioner was not in federal or state custody at the time of notice\nand, therefore, does not meet the requirements of the second method to\nreopen under § 1252b(c)(3)(B).\n\f8 CRUZ PLEITEZ V. BARR\n\n exceptional circumstances, to appear at such\n proceedings . . . .\n\n As noted, Petitioner argues that, because he was 16 years\nold when he signed the return receipt on the OSC, he received\ninsufficient notice. Section 1252b(a)(2) does not specify\nhow a minor receives notice, but former 8 C.F.R.\n§ 103.5a(c)(2)(ii)4 provided that,\n\n in the case of a minor under 14 years of age,\n service shall be made upon the person with\n whom the . . . minor resides; whenever\n possible, service shall also be made on the\n near relative, guardian, committee, or friend.\n\nNo statute or regulation specifically establishes a special\nmethod for serving a minor who is older than 14.5 Petitioner\nwas over 14 years of age when he was served with the OSC.\nIf § 103.5a controls, then the service of the OSC on Petitioner\nwas proper under the then-extant statutes and regulations.\n\n Petitioner counters that service was inadequate under\nFlores-Chavez. In Flores-Chavez, we analyzed the\nregulatory framework governing notice to alien minors,\n\n\n\n 4\n The subsections in § 103.8 of the current Code of Federal\nRegulations match those in former § 103.5a. Compare 8 C.F.R. § 103.5a\n(1997) with 8 C.F.R. § 103.8 (2017). See also Immigration Benefits\nBusiness Transformation, 76 Fed. Reg. 53,764-01 (Aug. 29, 2011).\n 5\n As noted in Flores-Chavez, 362 F.3d at 1158–59, 1158 & n.5, the\nterms “minor” and “juvenile” are used inconsistently and sometimes\ninterchangeably in the INS regulations. We use the terms “minor” and\n“juvenile” in this opinion to refer to any person under the age of 18.\n\f CRUZ PLEITEZ V. BARR 9\n\nspecifically former 8 C.F.R. § 242.24.6 362 F.3d at 1156–57.\nFlores-Chavez was 15 years old when the INS served him\nwith an OSC. Id. at 1153–54. He had been apprehended by\nthe INS after crossing the border and had been released into\nthe care and responsibility of an adult relative. Id. at 1154.\nThe adult relative did not receive the OSC. Id. Flores-\nChavez was ordered deported in absentia. Id. Seven years\nlater, Flores-Chavez moved to reopen his deportation\nproceedings and to rescind the deportation order for lack of\nnotice. Id. We held that, although the INS had provided\nFlores-Chavez with the notice required by § 1252b, as an\nalien minor in INS custody, Flores-Chavez was entitled to\nadditional notice. Id. at 1156.\n\n First, the Flores-Chavez court examined § 242.24, INS’s\njuvenile detention and release regulation, which defines\njuveniles as “alien[s] under the age of eighteen (18) years.”\n8 C.F.R. § 242.24(a), (b)(1) (1997). That regulation also\nprovides that a responsible adult assumes both custody and\nresponsibility for a juvenile who is released into that adult’s\ncare. “The fair implication of § 242.24 as a whole is that any\nadult to whom an alien juvenile is released is charged with\nthe dual responsibilities of caring for the juvenile and\nensuring that the juvenile keeps his obligations to the court.”\nFlores-Chavez, 362 F.3d at 1156. Because § 242.24\n“assumes that a juvenile over fourteen is not competent to\nassure his presence at the hearing, the INS’s service of the\n\n\n 6\n The subsections in § 236.3 of the current Code of Federal\nRegulations match those in former § 242.24. Compare 8 C.F.R. § 242.24\n(1997) with 8 C.F.R. § 236.3 (2017). See also Inspection and Expedited\nRemoval of Aliens, 62 Fed. Reg. 10,312-01 (Mar. 6, 1997); Apprehension,\nProcessing, Care, and Custody of Alien Minors and Unaccompanied Alien\nChildren, 83 Fed. Reg. 45,486-01 (Sept. 7, 2018).\n\f10 CRUZ PLEITEZ V. BARR\n\ntime and place of the proceedings on only [Flores-Chavez]\nhimself and not on the adult who took custody of him\ndeprived [Flores-Chavez] of the effective notice to which he\nwas legally entitled under § [1252b(a)(2)].” Id. at 1157.\n\n Second, the court considered 8 C.F.R. § 103.5a, which\ngenerally governs the requirements for service of notice on\naliens. Relevant to this case, § 103.5a(c)(2)(ii) requires\nservice “upon the person with whom the . . . minor [under 14\nyears of age] resides.” Flores-Chavez reasoned that its\nreading of § 242.24 does not conflict with the requirements\nof service detailed in § 103.5a, noting that § 103.5a does not\n“purport to address the issue of notice to juveniles in custody\nwho are released to an adult for an appearance at a future\nhearing.” 362 F.3d at 1158 (emphasis added).\n\n Flores-Chavez’ circumstances and Petitioner’s\ncircumstances differ significantly. Petitioner was not\ndetained. And he filed an affirmative application for asylum.\nSee E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 767\n(9th Cir. 2018) (citing Dhakal v. Sessions, 895 F.3d 532,\n536–37 (7th Cir. 2018), for its description of the affirmative\nasylum process); Dhakal, 895 F.3d at 536 (“A person\nphysically present in the United States, and not in removal\nproceedings, may apply affirmatively for asylum . . . .”). The\napplication stated that Petitioner was not in exclusion or\ndeportation proceedings, that he had been in the United States\nfor more than 5 years, and that he had lived for the last\n5 years at a private residence in California. Additionally,\nPetitioner was 16 at the time he was served with notice.\n\n The relevant regulations differ, too, because Petitioner\nwas not detained. Thus the question before us is whether\nFlores-Chavez extends to situations in which a minor over the\n\f CRUZ PLEITEZ V. BARR 11\n\nage of 14 was never detained or released to an adult by the\nINS and in which he initiated proceedings by filing an\naffirmative request for relief. We conclude that the answer is\n“no.”\n\n In addition to resting on an interpretation of the relevant\nstatutes and regulations, Flores-Chavez concluded that due\nprocess concerns would arise if the notice in that case were\ndeemed sufficient. Id. at 1160–62. The due process analysis,\nlike the regulatory analysis, differs significantly here.\n\n Because “[t]he private liberty interests involved in\ndeportation proceedings are indisputably substantial,”\nDillingham v. INS, 267 F.3d 996, 1010 (9th Cir. 2001), alien\nminors “in deportation proceedings are entitled to the fifth\namendment guaranty of due process,” Larita-Martinez v. INS,\n220 F.3d 1092, 1095 (9th Cir. 2000) (internal quotation marks\nomitted). And “parental notification requirements, such as\nthose established in 8 C.F.R. § 103.5a, further implicate the\ndue process rights of juveniles, as minors generally cannot\nappreciate or navigate the rules of or rights surrounding final\nproceedings that significantly impact their liberty interests.”\nFlores-Chavez, 362 F.3d at 1160 (citing In re Gault, 387 U.S.\n1, 33–34 (1967)).\n\n Accordingly, we must (as we did in Flores-Chavez) apply\nthe test outlined in Mathews v. Eldridge, 424 U.S. 319\n(1976), to analyze whether the regulatory framework provides\nconstitutionally sufficient notice in the present circumstances.\nWe must consider,\n\n [f]irst, the private interest that will be affected\n by the official action; second, the risk of an\n erroneous deprivation of such interest through\n\f12 CRUZ PLEITEZ V. BARR\n\n the procedures used, and the probable value,\n if any, of additional or substitute procedural\n safeguards; and finally, the Government’s\n interest, including the function involved and\n the fiscal and administrative burdens that the\n additional or substitute procedural\n requirement would entail.\n\nId. at 335. Under Mathews, we then balance the affected\ninterests to assess “whether the administrative procedures\nprovided here are constitutionally sufficient.” Id. at 334.\n\n First, we examine the affected interest of the individual.\nAs stated in Flores-Chavez,\n\n the private interest in receiving notice of\n pending deportation proceedings is one of\n grave importance. For over one hundred\n years, our courts have held that aliens possess\n due process rights under the Fifth\n Amendment. See Yamataya v. Fisher,\n 189 U.S. 86 (1903). An alien facing\n deportation confronts the loss of a significant\n liberty interest, as deportation “visits a great\n hardship on the individual and deprives him\n of the right to stay and live and work in this\n land of freedom.” Bridges v. Wixon, 326 U.S.\n 135, 154 (1945); Dillingham, 267 F.3d\n at 1010.\n\nFlores-Chavez, 362 F.3d at 1161. This factor clearly weighs\nin favor of Petitioner.\n\f CRUZ PLEITEZ V. BARR 13\n\n Second, we examine the risk of error and probable value\nof additional safeguards. We wrote in Flores-Chavez that\n“the regulatory and statutory framework makes clear [that]\njuveniles require the assistance of a responsible adult to\nnavigate the deportation process.” Id. at 1161. We also noted\nthat “[t]he regulatory framework which includes 8 C.F.R.\n§ 242.24 contemplates that no minor alien under the age of\neighteen should be presumed responsible for understanding\nhis rights and responsibilities in preparing for and appearing\nat final immigration proceedings.” Id. at 1157. The\nimmigration laws are complex, and our precedents recognize\nthat minors face a substantial risk of error in navigating the\nsystem.\n\n Nonetheless, the calculation differs here, and not just\nbecause Petitioner is slightly older than Flores-Chavez was.\nPetitioner himself set in motion the procedures leading to his\nhearing by filing an affirmative asylum application and by\nappearing before an asylum officer. These facts suggest that\nthe risk of error in Petitioner’s situation is less than the risk\nof error in Flores-Chavez’ situation.\n\n More importantly, no adult ever entered an agreement\nwith the government to assume responsibility for Petitioner.\nIt is unclear with whom Petitioner lived at the time of his\ndeportation hearing, including whether anyone at his\nresidence was over the age of 18. It is equally unclear that\nnotice to an adult living at his residence (if there was one)\nwould have added any safeguards to the process, because we\ncannot know whether that adult would have been willing to\ntake the kind of responsibility that was statutorily assigned in\nFlores-Chavez. Without researching the details of every\nminor’s situation, it is impossible to know whether a\nparticular minor over the age of 14 resides with an adult and,\n\f14 CRUZ PLEITEZ V. BARR\n\nif so, whether serving the OSC on that adult will be any\nmore effective in ensuring the minor’s attendance at the\nhearing than serving notice on the minor.\n\n Third, we examine the governmental interest and potential\nburden. We have observed that “it is to the INS’s great\nbenefit to have as many juveniles as possible attend their\nhearings, thus avoiding the expenditures of time and money\nin locating those ordered deported in absentia.” Flores-\nChavez, 362 F.3d at 1162. Nonetheless, requiring the\ngovernment to provide notice to a responsible adult living\nwith a never-detained juvenile over the age of 14 assumes\nthat there is such a person and that the person can be\nidentified.\n\n In Flores-Chavez, we reasoned that “the incidental burden\nincurred by the INS is minimal when compared both with the\nminor’s interests in understanding his rights and\nresponsibilities and in appearing at his immigration\nproceedings, and with the likely effectiveness of proper\nnotice to the responsible adult in achieving those ends.” Id.\nIn sharp contrast, here the burden on the government would\nbe substantial. Unlike in Flores-Chavez, at the time the\ngovernment serves a never-detained minor over the age of\n14—particularly one who has affirmatively applied for\nasylum—with an OSC, it likely never interacted with that\nminor’s adult relative or guardian. Cf. at 1161–62 (noting\nthat “[t]he agency could provide the notice when the adult\narrives to take custody of the minor and could read it\nsimultaneously to the minor and the adult”). Research would\nbe required to determine who lives with the minor, what their\nrelationships to the minor are, and what, if any, responsibility\nthey might have (or be willing and able to undertake) to\nensure that the minor appears for immigration proceedings.\n\f CRUZ PLEITEZ V. BARR 15\n\nSuch a process necessarily would involve material “fiscal and\nadministrative burdens.” Mathews, 424 U.S. at 335.\n\n Balancing all the factors, the burden on the government\noutweighs the interest of never-detained minors over the age\nof 14, at least those who have filed an affirmative request for\nrelief. The BIA did not violate due process, and Petitioner’s\nnotice was sufficient.\n\n Petition DENIED.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Jose Cruz Pleitez v. William Barr\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-18\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\n JOSE CRISTOBAL CRUZ PLEITEZ, No. 15-72876\\n Petitioner,\\n Agency No.\\n v. A074-803-846\\n\\n WILLIAM P. BARR, Attorney\\n General, OPINION\\n Respondent.\\n\\n\\n On Petition for Review of an Order of the\\n Board of Immigration Appeals\\n\\n Submitted August 14, 2019*\\n Pasadena, California\\n\\n Filed September 18, 2019\\n\\n Before: Mary M. Schroeder and Susan P. Graber, Circuit\\n Judges, and Michael H. Watson,** District Judge.\\n\\n Opinion by Judge Graber\\n\\n\\n\\n *\\n The panel unanimously concludes that this case is suitable for\\ndecision without oral argument. Fed. R. App. P. 34(a)(2).\\n **\\n The Honorable Michael H. Watson, United States District Judge for\\nthe Southern District of Ohio, sitting by designation.\\n\\f2 CRUZ PLEITEZ V. BARR\\n\\n SUMMARY***\\n\\n\\n Immigration\\n\\n Denying Fernando Jose Cristobal Cruz Pleitez’ petition\\nfor review of a decision of the Board of Immigration Appeals\\ndenying his motion to reopen his 1996 in absentia deportation\\norder, the panel held that the notice Petitioner received of his\\nhearing comported with regulatory requirements and due\\nprocess, and rejected his argument that he did not receive\\nproper notice because he was 16 years old at the time he was\\nserved and no adult was served with the Order to Show Cause\\nand Notice of Hearing (“OSC”).\\n\\n Petitioner entered the United States without inspection at\\nthe age of 10 and affirmatively applied for asylum in 1996\\nwhen he was 16 years old. An asylum officer referred his\\ncase to immigration court, and the former Immigration and\\nNaturalization Service (“INS”) served him with an OSC\\nproviding the date, time, and location of his deportation\\nhearing. The OSC was sent by certified mail and included a\\nreturn receipt, which Petitioner signed. When Petitioner did\\nnot appear for his hearing, an immigration judge ordered him\\ndeported in absentia.\\n\\n In 2014, Petitioner filed a motion to reopen, arguing that\\nnotice to him only, without notice to a responsible adult,\\nviolated his rights. The immigration judge denied\\nPetitioner’s motion, and the BIA dismissed his appeal.\\n\\n\\n ***\\n This summary constitutes no part of the opinion of the court. It has\\nbeen prepared by court staff for the convenience of the reader.\\n\\f CRUZ PLEITEZ V. BARR 3\\n\\n At the relevant time, a regulation provided that notice to\\na minor under 14 years of age had to be made on a person\\nwith whom the minor resided, but no statute or regulation\\nestablished a special method of serving a minor older than 14.\\nHowever, in Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th\\nCir. 2004), this court held that, when a minor was detained\\nfor illegally entering the United States and then released into\\nthe custody of an adult relative, the only reasonable\\ninterpretation of the regulations at issue required that INS\\nserve notice to both the juvenile and to the person to whom\\nthe regulation authorized release.\\n\\n The panel held that Flores-Chavez does not extend to\\nsituations in which a minor over the age of 14 was never\\ndetained or released to an adult by the INS and in which he\\ninitiated proceedings by filing an affirmative request for\\nrelief. The panel explained that Flores-Chavez’\\ncircumstances and Petitioner’s circumstances differed\\nsignificantly: Petitioner was not detained, filed an affirmative\\napplication for asylum and was 16 years old when served his\\nOSC, whereas Flores-Chavez was detained and released into\\nthe care of a responsible adult and was 15 when he was\\nserved his OSC. The panel also noted that the relevant\\nregulations differed, too, because Petitioner was not detained.\\n\\n Applying the test outlined in Mathews v. Eldridge, 424\\nU.S. 319 (1976), the panel further concluded that the notice\\nPetitioner received comported with due process. Balancing\\nall the factors, the panel explained that the burden on the\\ngovernment of providing notice to a responsible adult living\\nwith a juvenile over the age of 14 outweighed the interest of\\nnever-detained minors over the age of 14, at least those who\\nhad filed an affirmative request for relief.\\n\\f4 CRUZ PLEITEZ V. BARR\\n\\n COUNSEL\\n\\nFrank E. Ronzio, Ronzio & Associates, Los Angeles,\\nCalifornia, for Petitioner.\\n\\nVirginia L. Gordon, Trial Attorney; Terri J. Scadron,\\nAssistant Director; Office of Immigration Litigation, Civil\\nDivision, United States Department of Justice, Washington,\\nD.C.; for Respondent.\\n\\n\\n OPINION\\n\\nGRABER, Circuit Judge:\\n\\n Petitioner Jose Cristobal Cruz Pleitez, a native and citizen\\nof El Salvador, seeks review of the Board of Immigration\\nAppeals’ (“BIA”) decision denying his 2014 motion to\\nreopen. Petitioner arrived in the United States in 1990. He\\naffirmatively applied for asylum in 1996 and was served with\\nan Order to Show Cause and Notice of Hearing (“OSC”), but\\nhe failed to appear at his hearing. An immigration judge\\n(“IJ”) ordered Petitioner deported in absentia. As relevant\\nhere, Petitioner argues that he did not receive proper notice of\\nthe hearing because he was 16 years old in 1996 and no adult\\nwas served with the OSC. We hold that the notice given here\\ncomported with both regulatory requirements and due\\nprocess.1 Accordingly, we deny the petition for review.\\n\\n\\n\\n\\n 1\\n We resolve additional issues in a memorandum disposition filed this\\ndate.\\n\\f CRUZ PLEITEZ V. BARR 5\\n\\n FACTUAL AND PROCEDURAL HISTORY\\n\\n In 1990, at the age of 10, Petitioner entered the United\\nStates without inspection. In 1996, he affirmatively sought\\nasylum. An asylum officer interviewed Petitioner and\\nreferred his case to immigration court.\\n\\n The former Immigration and Naturalization Service\\n(“INS”) served Petitioner, who was 16 years old at the time,\\nwith an OSC, which provided the date, time, and location of\\ndeportation proceedings. The OSC was sent by certified mail\\nand included a return receipt, which Petitioner signed on July\\n25, 1996.\\n\\n But Petitioner did not appear for his deportation\\nproceeding and, on October 15, 1996, an IJ ordered him\\ndeported in absentia. In 2014, Petitioner filed a motion to\\nreopen, seeking to rescind the deportation order. In his\\nmotion, Petitioner raised several issues, including a claim that\\nnotice to him only, without notice to a responsible adult,\\nviolated his rights under the principles announced in Flores-\\nChavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004). There, we\\nheld that, when a minor is detained for illegally entering the\\nUnited States and then released into the custody of an adult\\nrelative, “the only reasonable interpretation of the regulations\\nat issue requires that the [INS] serve notice to both the\\n‘juvenile’ . . . and to the person to whom the regulation\\nauthorizes release.” Id. at 1153.\\n\\n The IJ denied Petitioner’s motion. Petitioner timely\\nappealed to the BIA, which dismissed the appeal. As relevant\\nhere, the BIA ruled that Flores-Chavez does not control\\nbecause Petitioner, unlike Flores-Chavez, presented no\\nevidence showing that he had ever been detained and then\\n\\f6 CRUZ PLEITEZ V. BARR\\n\\nreleased by INS into the custody of a responsible adult.\\nPetitioner timely seeks our review.\\n\\n STANDARDS OF REVIEW\\n\\n When “the BIA conducts its own review of the evidence\\nand law, rather than adopting the IJ’s decision, our review is\\nlimited to the BIA’s decision, except to the extent the IJ’s\\nopinion is expressly adopted.” Zumel v. Lynch, 803 F.3d 463,\\n471 (9th Cir. 2015) (internal quotation marks omitted). We\\nreview the denial of a motion to reopen for abuse of\\ndiscretion. Salim v. Lynch, 831 F.3d 1133, 1137 (9th Cir.\\n2016). “The BIA abuses its discretion when its decision is\\narbitrary, irrational, or contrary to law.” Bonilla v. Lynch,\\n840 F.3d 575, 581 (9th Cir. 2016) (internal quotation marks\\nomitted). But we review de novo due process claims.\\nVilchez v. Holder, 682 F.3d 1195, 1198 (9th Cir. 2012).\\n\\n DISCUSSION\\n\\n Former 8 U.S.C. § 1252b(c)(3)2 provided that an in\\nabsentia deportation order\\n\\n may be rescinded only—\\n\\n (A) upon a motion to reopen filed within\\n 180 days after the date of the order of\\n deportation if the alien demonstrates that the\\n failure to appear was because of exceptional\\n circumstances (as defined in subsection (f)(2)\\n of this section), or\\n\\n 2\\n The INA provision relating to removal proceedings conducted in\\nabsentia is now located at 8 U.S.C. § 1229a(b)(5).\\n\\f CRUZ PLEITEZ V. BARR 7\\n\\n (B) upon a motion to reopen filed at any\\n time if the alien demonstrates that the alien\\n did not receive notice in accordance with\\n subsection (a)(2) of this section or the alien\\n demonstrates that the alien was in Federal or\\n State custody and did not appear through no\\n fault of the alien.\\n\\n Petitioner did not file his motion to reopen within\\n180 days after the IJ ordered him deported in absentia, so he\\nis not eligible for relief under subparagraph (A). To\\ndetermine whether Petitioner is eligible for relief under\\nsubparagraph (B), we must decide whether he received\\nnotice in accordance with § 1252b(a)(2):3\\n\\n In deportation proceedings under section\\n 1252 of this title—\\n\\n (A) written notice shall be given in person\\n to the alien (or, if personal service is not\\n practicable, written notice shall be given by\\n certified mail to the alien or to the alien’s\\n counsel of record, if any), in the order to show\\n cause or otherwise, of—\\n\\n (i) the time and place at which the\\n proceedings will be held, and\\n\\n (ii) the consequences under subsection (c)\\n of this section of the failure, except under\\n\\n\\n 3\\n Petitioner was not in federal or state custody at the time of notice\\nand, therefore, does not meet the requirements of the second method to\\nreopen under § 1252b(c)(3)(B).\\n\\f8 CRUZ PLEITEZ V. BARR\\n\\n exceptional circumstances, to appear at such\\n proceedings . . . .\\n\\n As noted, Petitioner argues that, because he was 16 years\\nold when he signed the return receipt on the OSC, he received\\ninsufficient notice. Section 1252b(a)(2) does not specify\\nhow a minor receives notice, but former 8 C.F.R.\\n§ 103.5a(c)(2)(ii)4 provided that,\\n\\n in the case of a minor under 14 years of age,\\n service shall be made upon the person with\\n whom the . . . minor resides; whenever\\n possible, service shall also be made on the\\n near relative, guardian, committee, or friend.\\n\\nNo statute or regulation specifically establishes a special\\nmethod for serving a minor who is older than 14.5 Petitioner\\nwas over 14 years of age when he was served with the OSC.\\nIf § 103.5a controls, then the service of the OSC on Petitioner\\nwas proper under the then-extant statutes and regulations.\\n\\n Petitioner counters that service was inadequate under\\nFlores-Chavez. In Flores-Chavez, we analyzed the\\nregulatory framework governing notice to alien minors,\\n\\n\\n\\n 4\\n The subsections in § 103.8 of the current Code of Federal\\nRegulations match those in former § 103.5a. Compare 8 C.F.R. § 103.5a\\n(1997) with 8 C.F.R. § 103.8 (2017). See also Immigration Benefits\\nBusiness Transformation, 76 Fed. Reg. 53,764-01 (Aug. 29, 2011).\\n 5\\n As noted in Flores-Chavez, 362 F.3d at 1158–59, 1158 & n.5, the\\nterms “minor” and “juvenile” are used inconsistently and sometimes\\ninterchangeably in the INS regulations. We use the terms “minor” and\\n“juvenile” in this opinion to refer to any person under the age of 18.\\n\\f CRUZ PLEITEZ V. BARR 9\\n\\nspecifically former 8 C.F.R. § 242.24.6 362 F.3d at 1156–57.\\nFlores-Chavez was 15 years old when the INS served him\\nwith an OSC. Id. at 1153–54. He had been apprehended by\\nthe INS after crossing the border and had been released into\\nthe care and responsibility of an adult relative. Id. at 1154.\\nThe adult relative did not receive the OSC. Id. Flores-\\nChavez was ordered deported in absentia. Id. Seven years\\nlater, Flores-Chavez moved to reopen his deportation\\nproceedings and to rescind the deportation order for lack of\\nnotice. Id. We held that, although the INS had provided\\nFlores-Chavez with the notice required by § 1252b, as an\\nalien minor in INS custody, Flores-Chavez was entitled to\\nadditional notice. Id. at 1156.\\n\\n First, the Flores-Chavez court examined § 242.24, INS’s\\njuvenile detention and release regulation, which defines\\njuveniles as “alien[s] under the age of eighteen (18) years.”\\n8 C.F.R. § 242.24(a), (b)(1) (1997). That regulation also\\nprovides that a responsible adult assumes both custody and\\nresponsibility for a juvenile who is released into that adult’s\\ncare. “The fair implication of § 242.24 as a whole is that any\\nadult to whom an alien juvenile is released is charged with\\nthe dual responsibilities of caring for the juvenile and\\nensuring that the juvenile keeps his obligations to the court.”\\nFlores-Chavez, 362 F.3d at 1156. Because § 242.24\\n“assumes that a juvenile over fourteen is not competent to\\nassure his presence at the hearing, the INS’s service of the\\n\\n\\n 6\\n The subsections in § 236.3 of the current Code of Federal\\nRegulations match those in former § 242.24. Compare 8 C.F.R. § 242.24\\n(1997) with 8 C.F.R. § 236.3 (2017). See also Inspection and Expedited\\nRemoval of Aliens, 62 Fed. Reg. 10,312-01 (Mar. 6, 1997); Apprehension,\\nProcessing, Care, and Custody of Alien Minors and Unaccompanied Alien\\nChildren, 83 Fed. Reg. 45,486-01 (Sept. 7, 2018).\\n\\f10 CRUZ PLEITEZ V. BARR\\n\\ntime and place of the proceedings on only [Flores-Chavez]\\nhimself and not on the adult who took custody of him\\ndeprived [Flores-Chavez] of the effective notice to which he\\nwas legally entitled under § [1252b(a)(2)].” Id. at 1157.\\n\\n Second, the court considered 8 C.F.R. § 103.5a, which\\ngenerally governs the requirements for service of notice on\\naliens. Relevant to this case, § 103.5a(c)(2)(ii) requires\\nservice “upon the person with whom the . . . minor [under 14\\nyears of age] resides.” Flores-Chavez reasoned that its\\nreading of § 242.24 does not conflict with the requirements\\nof service detailed in § 103.5a, noting that § 103.5a does not\\n“purport to address the issue of notice to juveniles in custody\\nwho are released to an adult for an appearance at a future\\nhearing.” 362 F.3d at 1158 (emphasis added).\\n\\n Flores-Chavez’ circumstances and Petitioner’s\\ncircumstances differ significantly. Petitioner was not\\ndetained. And he filed an affirmative application for asylum.\\nSee E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 767\\n(9th Cir. 2018) (citing Dhakal v. Sessions, 895 F.3d 532,\\n536–37 (7th Cir. 2018), for its description of the affirmative\\nasylum process); Dhakal, 895 F.3d at 536 (“A person\\nphysically present in the United States, and not in removal\\nproceedings, may apply affirmatively for asylum . . . .”). The\\napplication stated that Petitioner was not in exclusion or\\ndeportation proceedings, that he had been in the United States\\nfor more than 5 years, and that he had lived for the last\\n5 years at a private residence in California. Additionally,\\nPetitioner was 16 at the time he was served with notice.\\n\\n The relevant regulations differ, too, because Petitioner\\nwas not detained. Thus the question before us is whether\\nFlores-Chavez extends to situations in which a minor over the\\n\\f CRUZ PLEITEZ V. BARR 11\\n\\nage of 14 was never detained or released to an adult by the\\nINS and in which he initiated proceedings by filing an\\naffirmative request for relief. We conclude that the answer is\\n“no.”\\n\\n In addition to resting on an interpretation of the relevant\\nstatutes and regulations, Flores-Chavez concluded that due\\nprocess concerns would arise if the notice in that case were\\ndeemed sufficient. Id. at 1160–62. The due process analysis,\\nlike the regulatory analysis, differs significantly here.\\n\\n Because “[t]he private liberty interests involved in\\ndeportation proceedings are indisputably substantial,”\\nDillingham v. INS, 267 F.3d 996, 1010 (9th Cir. 2001), alien\\nminors “in deportation proceedings are entitled to the fifth\\namendment guaranty of due process,” Larita-Martinez v. INS,\\n220 F.3d 1092, 1095 (9th Cir. 2000) (internal quotation marks\\nomitted). And “parental notification requirements, such as\\nthose established in 8 C.F.R. § 103.5a, further implicate the\\ndue process rights of juveniles, as minors generally cannot\\nappreciate or navigate the rules of or rights surrounding final\\nproceedings that significantly impact their liberty interests.”\\nFlores-Chavez, 362 F.3d at 1160 (citing In re Gault, 387 U.S.\\n1, 33–34 (1967)).\\n\\n Accordingly, we must (as we did in Flores-Chavez) apply\\nthe test outlined in Mathews v. Eldridge, 424 U.S. 319\\n(1976), to analyze whether the regulatory framework provides\\nconstitutionally sufficient notice in the present circumstances.\\nWe must consider,\\n\\n [f]irst, the private interest that will be affected\\n by the official action; second, the risk of an\\n erroneous deprivation of such interest through\\n\\f12 CRUZ PLEITEZ V. BARR\\n\\n the procedures used, and the probable value,\\n if any, of additional or substitute procedural\\n safeguards; and finally, the Government’s\\n interest, including the function involved and\\n the fiscal and administrative burdens that the\\n additional or substitute procedural\\n requirement would entail.\\n\\nId. at 335. Under Mathews, we then balance the affected\\ninterests to assess “whether the administrative procedures\\nprovided here are constitutionally sufficient.” Id. at 334.\\n\\n First, we examine the affected interest of the individual.\\nAs stated in Flores-Chavez,\\n\\n the private interest in receiving notice of\\n pending deportation proceedings is one of\\n grave importance. For over one hundred\\n years, our courts have held that aliens possess\\n due process rights under the Fifth\\n Amendment. See Yamataya v. Fisher,\\n 189 U.S. 86 (1903). An alien facing\\n deportation confronts the loss of a significant\\n liberty interest, as deportation “visits a great\\n hardship on the individual and deprives him\\n of the right to stay and live and work in this\\n land of freedom.” Bridges v. Wixon, 326 U.S.\\n 135, 154 (1945); Dillingham, 267 F.3d\\n at 1010.\\n\\nFlores-Chavez, 362 F.3d at 1161. This factor clearly weighs\\nin favor of Petitioner.\\n\\f CRUZ PLEITEZ V. BARR 13\\n\\n Second, we examine the risk of error and probable value\\nof additional safeguards. We wrote in Flores-Chavez that\\n“the regulatory and statutory framework makes clear [that]\\njuveniles require the assistance of a responsible adult to\\nnavigate the deportation process.” Id. at 1161. We also noted\\nthat “[t]he regulatory framework which includes 8 C.F.R.\\n§ 242.24 contemplates that no minor alien under the age of\\neighteen should be presumed responsible for understanding\\nhis rights and responsibilities in preparing for and appearing\\nat final immigration proceedings.” Id. at 1157. The\\nimmigration laws are complex, and our precedents recognize\\nthat minors face a substantial risk of error in navigating the\\nsystem.\\n\\n Nonetheless, the calculation differs here, and not just\\nbecause Petitioner is slightly older than Flores-Chavez was.\\nPetitioner himself set in motion the procedures leading to his\\nhearing by filing an affirmative asylum application and by\\nappearing before an asylum officer. These facts suggest that\\nthe risk of error in Petitioner’s situation is less than the risk\\nof error in Flores-Chavez’ situation.\\n\\n More importantly, no adult ever entered an agreement\\nwith the government to assume responsibility for Petitioner.\\nIt is unclear with whom Petitioner lived at the time of his\\ndeportation hearing, including whether anyone at his\\nresidence was over the age of 18. It is equally unclear that\\nnotice to an adult living at his residence (if there was one)\\nwould have added any safeguards to the process, because we\\ncannot know whether that adult would have been willing to\\ntake the kind of responsibility that was statutorily assigned in\\nFlores-Chavez. Without researching the details of every\\nminor’s situation, it is impossible to know whether a\\nparticular minor over the age of 14 resides with an adult and,\\n\\f14 CRUZ PLEITEZ V. BARR\\n\\nif so, whether serving the OSC on that adult will be any\\nmore effective in ensuring the minor’s attendance at the\\nhearing than serving notice on the minor.\\n\\n Third, we examine the governmental interest and potential\\nburden. We have observed that “it is to the INS’s great\\nbenefit to have as many juveniles as possible attend their\\nhearings, thus avoiding the expenditures of time and money\\nin locating those ordered deported in absentia.” Flores-\\nChavez, 362 F.3d at 1162. Nonetheless, requiring the\\ngovernment to provide notice to a responsible adult living\\nwith a never-detained juvenile over the age of 14 assumes\\nthat there is such a person and that the person can be\\nidentified.\\n\\n In Flores-Chavez, we reasoned that “the incidental burden\\nincurred by the INS is minimal when compared both with the\\nminor’s interests in understanding his rights and\\nresponsibilities and in appearing at his immigration\\nproceedings, and with the likely effectiveness of proper\\nnotice to the responsible adult in achieving those ends.” Id.\\nIn sharp contrast, here the burden on the government would\\nbe substantial. Unlike in Flores-Chavez, at the time the\\ngovernment serves a never-detained minor over the age of\\n14—particularly one who has affirmatively applied for\\nasylum—with an OSC, it likely never interacted with that\\nminor’s adult relative or guardian. Cf. at 1161–62 (noting\\nthat “[t]he agency could provide the notice when the adult\\narrives to take custody of the minor and could read it\\nsimultaneously to the minor and the adult”). Research would\\nbe required to determine who lives with the minor, what their\\nrelationships to the minor are, and what, if any, responsibility\\nthey might have (or be willing and able to undertake) to\\nensure that the minor appears for immigration proceedings.\\n\\f CRUZ PLEITEZ V. BARR 15\\n\\nSuch a process necessarily would involve material “fiscal and\\nadministrative burdens.” Mathews, 424 U.S. at 335.\\n\\n Balancing all the factors, the burden on the government\\noutweighs the interest of never-detained minors over the age\\nof 14, at least those who have filed an affirmative request for\\nrelief. The BIA did not violate due process, and Petitioner’s\\nnotice was sufficient.\\n\\n Petition DENIED.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4468,"cells":{"id":{"kind":"number","value":4662036,"string":"4,662,036"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"American Diabetes Ass'n v. US Dept. of the Army"},"decision_date":{"kind":"string","value":"2019-09-18"},"docket_number":{"kind":"string","value":"18-15242"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Eugene E. Siler, * Michael Daly Hawkins, and Jacqueline H. Nguyen, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"HAWKINS, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nAMERICAN DIABETES ASSOCIATION, No. 18-15242\\n Plaintiff-Appellant,\\n D.C. No.\\n v. 5:16-cv-04051-\\n LHK\\nUNITED STATES DEPARTMENT OF THE\\nARMY; RYAN D. MCCARTHY,\\nSecretary of the Army, in his official OPINION\\ncapacity; UNITED STATES ARMY\\nFAMILY AND MORALE, WELFARE\\nAND RECREATION PROGRAMS;\\nUNITED STATES ARMY CHILD,\\nYOUTH AND SCHOOL SERVICES,\\n Defendants-Appellees.\\n\\n Appeal from the United States District Court\\n for the Northern District of California\\n Lucy H. Koh, District Judge, Presiding\\n\\n Argued and Submitted August 5, 2019\\n San Francisco, California\\n\\n Filed September 18, 2019\\n\\f2 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\n Before: Eugene E. Siler, * Michael Daly Hawkins,\\n and Jacqueline H. Nguyen, Circuit Judges.\\n\\n Opinion by Judge Hawkins\\n\\n\\n SUMMARY **\\n\\n\\n Mootness / Standing\\n\\n The panel affirmed the district court’s Fed. R. Civ. P.\\n12(b)(1) dismissal of the American Diabetes Association’s\\nFirst Amended Complaint seeking injunctive and\\ndeclaratory relief under Section 504 of the Rehabilitation\\nAct concerning defendants’ provision of diabetes-related\\ncare in the U.S. Army’s Child, Youth, and School Services’\\n(“CYSS”) programs.\\n\\n The Association is a nationwide non-profit that has\\nassisted families that have assertedly experienced diabetes-\\nrelated discrimination in the CYSS programs. CYSS\\noperates programs that are sometimes the only childcare\\noptions for families working and living on Army bases in\\nremote areas.\\n\\n In July 2016, when the lawsuit began, the Army had in\\nplace U.S. Army Regulation 608-10 and 2008 Family and\\nMorale, Welfare and Recreation Command Memorandum\\n\\n *\\n The Honorable Eugene E. Siler, United States Circuit Judge for the\\nU.S. Court of Appeals for the Sixth Circuit, sitting by designation.\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 3\\n\\n(the “Old Policy”) which prohibited CYSS staff from\\nproviding essential medical care for diabetic children. In\\nJune 2017, defendants revoked the Old Policy and replaced\\nit with a “New Policy” that provides for possible diabetes-\\nrelated accommodations.\\n\\n The panel held that the Association’s challenge to the\\nOld Policy, as well as the injuries incurred thereunder, were\\nmoot where the Association sought only prospective relief.\\nSpecifically, the panel held that defendants satisfied their\\nburden of clearly showing they cannot reasonably be\\nexpected to reinstitute the Old Policy’s blanket prohibition\\non care. The panel rejected the Association’s contention that\\nthe voluntary cessation exception to mootness applied.\\n\\n The panel held that the Association lacked standing to\\nchallenge the New Policy. Specifically, first, the panel held\\nthat the district court did not err by finding the Association\\nfailed to establish organizational standing where the\\nAssociation did not show it diverted resources to combat the\\nNew Policy, and thereby, did not establish ”injury in fact.”\\nSecond, the panel held that the Association failed to establish\\nrepresentational standing where none of its members had\\nstanding to sue in their own right. The panel held that none\\nof the members had actual knowledge of the challenged\\nprovisions at the time the operative complaint was filed, and\\ntherefore, they would not have been deterred from enrolling\\ntheir otherwise eligible diabetic children as a result.\\n\\f4 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\n COUNSEL\\n\\nStuart Seaborn (argued), Rebecca Williford, Jessica\\nAgatstein, and Freya Pitts, Disability Rights Advocates,\\nBerkeley, California, for Plaintiff-Appellant.\\n\\nEdward Himmelfarb (argued) and Marleigh D. Dover,\\nAppellate Staff; Alex G. Tse, Acting United States Attorney;\\nHashim M. Mooppan, Deputy Assistant Attorney General;\\nCivil Division, United States Department of Justice,\\nWashington, D.C.; for Defendants-Appellees.\\n\\nMichael A. Greene, Richardson Wright LLP, Portland,\\nOregon; Gregory G. Paul, Morgan & Paul PLLC, Pittsburgh,\\nPennsylvania; John W. Griffin, Marek Griffin & Knaupp,\\nVictoria, Texas; for Amicus Curiae Pediatric Diabetes\\nCommunity.\\n\\nJocelyn Larkin, Lindsay Nako, and Daniel Nesbit, Impact\\nFund, Berkeley, California, for Amici Curiae Impact Fund,\\nAARP, AARP Foundation, Animal Legal Defense Fund,\\nBay Area Legal Aid, Civil Rights Education and\\nEnforcement Center, Law Foundation of Silicon Valley,\\nLegal Aid Association of California, Legal Aid at Work,\\nLegal Aid Foundation of Los Angeles, Legal Services for\\nPrisoners with Children, National Women’s Law Center,\\nPublic Interest Law Project, Southern Poverty Law Center,\\nand Worksafe Inc.\\n\\nTodd R. Geremia, Jones Day, New York, New York; Eli M.\\nTemkin, Jones Day, Minneapolis, Minnesota; for Amici\\nCuriae Disability Rights Organizations.\\n\\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 5\\n\\n OPINION\\n\\nHAWKINS, Circuit Judge:\\n\\n BACKGROUND\\n\\n The American Diabetes Association (the “Association”)\\nis a nationwide nonprofit with a mission “to prevent and cure\\ndiabetes and to improve the lives of those affected by\\ndiabetes.” In furtherance of its mission, the Association,\\ninter alia, “conduct[s] advocacy for laws, regulations, and\\npolicies that keep children with diabetes safe at school; . . .\\n[and] provid[es] legal information and assistance to\\nindividuals and families experiencing diabetes-related\\ndiscrimination.” Over the past decade, the Association has\\nassisted families that have assertedly experienced diabetes-\\nrelated discrimination in the Army’s Child, Youth, and\\nSchool Services’ (“CYSS”) programs. CYSS operates\\nprograms such as daycare, after-school care, and summer\\ncamps for children and youth on military bases (among\\nothers). These programs are sometimes the only childcare\\noptions for families working and living on bases in remote\\nareas.\\n\\n I. The Old Policy\\n\\n In July 2016, when this lawsuit began, the Army had in\\nplace United States Army Regulation 608-10 and a 2008\\nFamily and Morale, Welfare and Recreation Command\\nMemorandum (collectively, “Old Policy”), which together\\nprohibited CYSS staff from providing essential medical care\\nfor diabetic children. This version of Regulation 608-10\\nincluded a statement that:\\n\\n [CYSS staff] will not perform functions that\\n require extensive medical knowledge (e.g.,\\n\\f6 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\n determining the dosage or frequency of a\\n prescribed medication); are considered\\n medical intervention therapy (e.g., those not\\n typically taught to parents by physical,\\n occupational, speech therapists or special\\n educators as part of a home program); or if\\n improperly performed, have a high medical\\n risk (e.g., injection of insulin).\\n\\nThe 2008 memorandum stated that staff therefore were not\\nauthorized to “[c]ount carbohydrates,” “[g]ive injections of\\ninsulin to include manipulation of the insulin pump which is\\nan alternate method of delivering insulin,” or “[g]ive\\ninjections of Glucagon, a rescue medication.” Although the\\nArmy sometimes granted exceptions to the Old Policy, there\\nwas no formal process for seeking or considering exceptions.\\n\\n II. The New Policy\\n\\n In June 2017, after plaintiffs filed their initial complaint,\\ndefendants revoked the Old Policy and replaced it with three\\ndocuments: (1) a revised Regulation 608-10; (2) an Army\\nmemorandum titled “Diabetes-Related Accommodations in\\nChild, Youth, and School Services Programs” (“Diabetes\\nMemorandum”); and (3) an Army memorandum titled\\n“Accommodation of Children and Youth with Diabetes in\\nArmy Child, Youth, and School Services Programs”\\n(“Accommodation Memorandum”) (collectively, “New\\nPolicy”). The amended Regulation 608-10 states that all\\n“requests for accommodation must be reviewed and assessed\\nindividually” and that CYSS programs “must provide\\nspecial needs accommodations unless the requested\\naccommodation imposes an undue hardship on the Army,\\nfundamentally alters the [CYSS] program in which the\\n\\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 7\\n\\naccommodation is being made, or poses a direct threat to\\nstaff or other participants in the program.”\\n\\n The Diabetes Memorandum, inter alia, “rescind[s] in\\n[its] entirety” the 2008 memorandum, declares that staff may\\nprovide accommodations such as counting carbohydrates\\nand administering glucagon, and provides that only the\\nArmy’s Assistant Chief of Staff for Installation Management\\n(“ACSIM”) may deny an accommodation request.\\n\\n The Accommodation Memorandum identifies counting\\ncarbohydrates and administering insulin and rescue\\nmedication as “[r]easonable accommodations” and sets forth\\na multi-step process through which accommodation requests\\nwill be considered. Thereunder, requests that do not\\n(1) require CYSS staff “to determine the correct insulin\\ndosage or to administer insulin,” or (2) meet a set of narrow\\ncircumstances, such as imposing “an undue hardship” on the\\nArmy, must be approved by the installation’s CYSS\\nCoordinator and implemented within ten weeks. However,\\nif the CYSS Coordinator’s recommendation is to deny the\\nrequest or the request requires CYSS staff “to determine the\\ncorrect insulin dosage or to administer insulin,” the matter\\nmust be submitted to the Garrison Commander, who must\\neither approve the request or make a recommendation to the\\nACSIM. Thus, it can take up to four months for insulin\\naccommodations to be fully approved and implemented.\\n\\n III. Procedural Background\\n\\n The Association filed its initial complaint in 2016,\\nseeking injunctive and declaratory relief for violations of\\nSection 504 of the Rehabilitation Act, 29 U.S.C. § 794.\\nSpecifically, the Association challenged defendants’\\n“blanket policy prohibiting the provision of critical diabetes-\\nrelated care.” On July 21, 2017, around six weeks after\\n\\f8 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\ndefendants instituted the New Policy, the Association filed\\nthe operative amended complaint (“FAC”). Therein, the\\nAssociation, again seeking only prospective relief, alleges\\nthe New Policy violates Section 504 of the Rehabilitation\\nAct by creating an impermissibly “burdensome\\naccommodation review process.”\\n\\n Defendants moved to dismiss the FAC under Federal\\nRule of Civil Procedure 12(b)(1), arguing the Association’s\\nclaims against the Old Policy were moot and the Association\\nlacks standing to challenge the New Policy. The court\\ngranted the motion and dismissed the FAC with leave to\\namend. Thereafter, the Association filed notice of its intent\\nto stand on its pleading, and the court entered a final\\nJudgment of Dismissal. This timely appeal followed.\\n\\n STANDARD OF REVIEW\\n\\n We review de novo a dismissal for mootness and lack of\\nArticle III standing. Bishop Paiute Tribe v. Inyo Cty.,\\n863 F.3d 1144, 1151 (9th Cir. 2017). Where, as here, a\\ndefendant brings a factual jurisdictional attack under Rule\\n12(b)(1), the “court may review evidence beyond the\\ncomplaint without converting the motion to dismiss into a\\nmotion for summary judgment.” Safe Air for Everyone v.\\nMeyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “Once the\\nmoving party has converted the motion to dismiss into a\\nfactual motion by presenting affidavits or other evidence\\nproperly brought before the court, the party opposing the\\nmotion must furnish affidavits or other evidence necessary\\nto satisfy its burden of establishing subject matter\\njurisdiction.” Id. (quoting Savage v. Glendale Union High\\nSch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)).\\n\\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 9\\n\\n DISCUSSION\\n\\n The Association contends the district court erred by\\nconcluding the injuries the Association suffered under the\\nOld Policy are moot and that the Association lacks standing\\nto challenge the New Policy. We address each argument in\\nturn.\\n\\n I. Mootness\\n\\n The Association contends its injuries under the Old\\nPolicy are not moot because: (1) the New Policy continues\\nto violate the Rehabilitation Act; and (2) the voluntary\\ncessation doctrine applies.\\n\\n a. Repeal and Replacement as Settling the\\n Controversy Regarding the Old Policy\\n\\n “A case becomes moot . . . ‘when the issues presented\\nare no longer “live” or the parties lack a legally cognizable\\ninterest in the outcome.’” Rosebrock v. Mathis, 745 F.3d\\n963, 971 (9th Cir. 2014) (quoting Already, LLC v. Nike, Inc.,\\n568 U.S. 85, 89 (2013)). Where the challenged conduct “has\\nbeen ‘sufficiently altered so as to present a substantially\\ndifferent controversy . . . [,] there is ‘no basis for concluding\\nthat the challenged conduct [is] being repeated.’” Chem.\\nProducers & Distribs. Ass’n v. Helliker, 463 F.3d 871, 875\\n(9th Cir. 2006) (third alteration in original) (quoting Ne. Fla.\\nChapter of Associated Gen. Contractors of Am. v. City of\\nJacksonville, 508 U.S. 656, 662 n.3 (1993)). The\\nAssociation, citing Northeastern Florida, argues the New\\nPolicy continues to discriminate against persons with\\ndiabetes and thus does not moot the Association’s claims\\nunder the Old Policy. There, however, the new city\\nordinance continued the challenged practice “by another\\n\\f10 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\nname” and thus “disadvantage[d] [the plaintiff] in the same\\nfundamental way.” 508 U.S. at 662.\\n\\n Here, by contrast, the Association alleges the Old Policy\\nharmed it by placing a blanket prohibition on care, whereas\\nthe New Policy allegedly harms the Association by\\ninstituting a burdensome approval process. As it is\\nundisputed that the New Policy repealed the blanket\\nprohibition and specifically lists the subject\\naccommodations as reasonable, the policy “has been\\n‘sufficiently altered so as to present a substantially different\\ncontroversy.’” Helliker, 463 F.3d at 875 (quoting Ne. Fla.\\nChapter of Associated Gen. Contractors of Am., 508 U.S.\\nat 662 n.3); see Outdoor Media Grp., Inc. v. City of\\nBeaumont, 506 F.3d 895, 901 (9th Cir. 2007) (holding\\nclaims for injunctive and declaratory relief moot where “the\\nconstitutional deficiencies . . . alleged in connection with the\\noriginal sign ordinance” had been cured).\\n\\n b. Voluntary Cessation\\n\\n The Association also argues the voluntary cessation\\nexception to mootness applies. Thereunder, “[t]he voluntary\\ncessation of challenged conduct does not ordinarily render a\\ncase moot because a dismissal for mootness would permit a\\nresumption of the challenged conduct as soon as the case is\\ndismissed.” Rosebrock, 745 F.3d at 971 (quoting Knox v.\\nServ. Employees Int’l Union, Local 1000, 567 U.S. 298, 306\\n(2012)). Thus, although courts “presume that a government\\nentity is acting in good faith when it changes its policy, . . .\\nwhen the Government asserts mootness based on such a\\nchange it still must bear the heavy burden of showing that\\nthe challenged conduct cannot reasonably be expected to\\nstart up again.” Id. (citation omitted). It may do so by\\npersuading the court that “the change in its behavior is\\n‘entrenched’ or ‘permanent.’” Fikre v. FBI, 904 F.3d 1033,\\n\\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 11\\n\\n1037 (9th Cir. 2018) (quoting McCormack v. Herzog,\\n788 F.3d 1017, 1025 (9th Cir. 2015)). 1\\n\\n The Association contends the district court erred by\\nfinding the government automatically satisfied its burden by\\namending Regulation 608-10. According to the Association,\\nthe court should have applied the framework outlined in\\nRosebrock, which expressly applies to policy changes “not\\nreflected in statutory changes or even in changes in\\nordinances or regulations.” 745 F.3d at 963. This is so, the\\nAssociation argues, because, while the regulatory\\namendment “deleted the prohibition on insulin\\naccommodations,” “all substantive provisions appear in\\n[the] policy memoranda that could be changed at any time.”\\n\\n Even assuming Rosebrock’s “loose framework” of non-\\nexhaustive considerations is applicable here, defendants\\nhave shown the conduct the Association challenged under\\nthe Old Policy—the blanket refusal to provide diabetes-\\nrelated care—cannot reasonably be expected to recur.\\n\\n First, “the policy change is evidenced by language that is\\n‘broad in scope and unequivocal in tone.’” Rosebrock,\\n745 F.3d at 972 (quoting White v. Lee, 227 F.3d 1214, 1243\\n(9th Cir. 2000)). The New Policy unequivocally renounces\\nthe previously challenged prohibition on care and\\nRegulation 608-10 now provides that CYSS “must provide\\nspecial needs accommodations” unless a set of narrow\\ncircumstances, such as “undue hardship,” are present.\\n\\n 1\\n Where, as here, the defendant has voluntarily ceased its challenged\\nconduct, the mootness inquiry bears “on the question whether a court\\nshould exercise its power to enjoin the defendant from renewing the\\npractice, but that is a matter relating to the exercise rather than the\\nexistence of judicial power.” City of Mesquite v. Aladdin’s Castle, Inc.,\\n455 U.S. 283, 289 (1982).\\n\\f12 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\nFurther, the interpretive memoranda identify diabetic\\naccommodations as reasonable and announce a policy of\\n“promot[ing] the participation and inclusion of children and\\nyouth with diabetes in [CYSS] programs and activities.”\\n\\n Second, the New Policy “addresses all of the\\nobjectionable measures that [the Government] officials took\\nagainst the plaintiffs” under the Old Policy. Id. (alteration\\nin original) (quoting White, 227 F.3d at 1243). Although the\\nAssociation contends the New Policy is infirm for other\\nreasons, the challenged prohibition on care has been\\nrepealed.\\n\\n Third, the Association concedes that this case “was the\\ncatalyst for the [government’s] adoption of the new policy.”\\nId. (quoting White, 227 F.3d at 1243). This weighs in favor\\nof a finding of mootness. Id.\\n\\n Fourth, the New Policy has been in place for a relatively\\nlong time—over two years. Cf. id. at 974 (finding this\\nconsideration weighed in favor of a finding of mootness\\nwhere, at the time the court issued its opinion, the policy had\\nbeen in place for more than three years).\\n\\n The fifth consideration, whether, since the New Policy’s\\nimplementation, defendants “have not engaged in conduct\\nsimilar to that challenged by the plaintiff,” id. (quoting\\nWhite, 227 F.3d at 1243), also weighs in favor of a finding\\nof mootness. The Association relies on declarations from\\nparents who state that, about two months after the New\\nPolicy was instituted, certain CYSS staff remained unaware\\nof the change. However, although the declarations evidence\\nsome confusion in CYSS’s transition to the New Policy, they\\nshow that, rather than continuing to enforce the Old Policy,\\nCYSS subjected new requests to the New Policy’s\\nprocedures.\\n\\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 13\\n\\n Lastly, while a lack of “‘procedural safeguards’\\ninsulating the new state of affairs from arbitrary reversal”\\ncan counsel against mootness, Fikre, 904 F.3d at 1039, and\\ndefendants have not offered evidence showing what\\nprocedures insulate the New Policy, the policy change is\\nenshrined, at least in part, in a regulatory revision, and thus\\nstands in stark contrast to the policy changes this court has\\nfound insufficient to render claims moot, cf. id. at 1039–40\\n(FBI’s decision to remove plaintiff from the no fly list was\\n“an individualized determination untethered to any\\nexplanation or change in policy, much less an abiding\\nchange in policy”); Bell v. City of Boise, 709 F.3d 890, 900–\\n01 (9th Cir. 2013) (where, inter alia, “the authority to\\nestablish policy for the Boise Police Department is vested\\nentirely in the Chief of Police,” that official’s unilateral\\n“Special Order” did not moot case).\\n\\n Under these circumstances, defendants have satisfied\\ntheir burden of clearly showing they cannot reasonably be\\nexpected to reinstitute the Old Policy’s blanket ban. Thus,\\nas the Association seeks only prospective relief, its challenge\\nto that policy, as well as the injuries incurred thereunder, are\\nmoot.\\n\\n II. The Association’s Standing to Challenge the New\\n Policy\\n\\n The Association contends that, even absent injuries\\nincurred under the Old Policy, it has standing to challenge\\nthe New Policy on its own behalf and on behalf of its\\nmembers. Either basis would be sufficient to confer\\nstanding, Am. Civil Liberties Union of Nevada v. Heller,\\n378 F.3d 979, 983 (9th Cir. 2004), and we address each in\\nturn.\\n\\f14 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\n a. Organizational Standing\\n\\n The Association contends it diverted resources to combat\\nthe New Policy and thus has standing to sue on its own\\nbehalf. This theory of standing has its roots in Havens Realty\\nCorp. v. Coleman, 455 U.S. 363 (1982). There, a fair\\nhousing organization claimed the defendant’s discriminatory\\nhousing practices “frustrated” the organization’s “ability to\\nprovide counseling and referral services for low- and\\nmoderate-income homeseekers,” and had forced the\\norganization “to devote significant resources to identify and\\ncounteract the” alleged discriminatory practices. Id. at 379.\\nThus, the organization established a “concrete and\\ndemonstrable injury to [its] activities—with the consequent\\ndrain on the organization’s resources—[that] constitute[d]\\nfar more than simply a setback to the organization’s abstract\\nsocial interests.” Id.\\n\\n Thus, under Havens Realty, an organization may\\nestablish “injury in fact if it can demonstrate: (1) frustration\\nof its organizational mission; and (2) diversion of its\\nresources to combat the particular [conduct] in question.”\\nSmith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1105 (9th\\nCir. 2004). For example, in East Bay Sanctuary Covenant v.\\nTrump, 909 F.3d 1219 (9th Cir. 2018), as amended by 2018\\nWL 8807133 (9th Cir. December 7, 2018), the plaintiff\\norganizations created “education and outreach initiatives\\nregarding the [challenged] rule.” Id. at 1242. In National\\nCouncil of La Raza v. Cegavske, 800 F.3d 1032 (9th Cir.\\n2015), to counteract alleged voter registration violations,\\ncivil rights groups “expend[ed] additional resources” that\\n“they would have spent on some other aspect of their\\norganizational purpose.” Id. at 1039. In these cases, the\\nplaintiffs were not “simply going about their ‘business as\\nusual,’” id. at 1040–41, but had altered their resource\\n\\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 15\\n\\nallocation to combat the challenged practices, see also Valle\\ndel Sol Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013)\\n(finding organizational standing where the plaintiffs “had to\\ndivert resources to educational programs to address its\\nmembers’ and volunteers’ concerns about the [challenged]\\nlaw’s effect”); Fair Hous. Council of San Fernando Valley\\nv. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012)\\n(finding organizational standing where the plaintiff, in\\nresponse to the defendant’s challenged practices, “started\\nnew education and outreach campaigns targeted at\\ndiscriminatory roommate advertising”); Comite de\\nJornaleros de Redondo Beach v. City of Redondo Beach, 657\\nF.3d 936, 943–44 (9th Cir. 2011) (finding organizational\\nstanding where resources directed toward “assisting day\\nlaborers during their arrests and meeting with workers about\\nthe status of the [challenged] ordinance would have\\notherwise been expended toward [the advocacy group’s]\\ncore organizing activities”); Smith, 358 F.3d at 1105 (finding\\norganizational standing where complaint was dismissed\\nwithout leave to amend and plaintiff alleged it “divert[ed] its\\nscarce resources from other efforts” so it could “monitor the\\n[subject] violations and educate the public regarding the\\ndiscrimination”); Fair Hous. of Marin v. Combs, 285 F.3d\\n899, 905 (9th Cir. 2002) (finding organizational standing\\nwhere plaintiff alleged it had expended thousands of dollars\\nto “redress[] the impact” of defendant’s discrimination and,\\nas a result, was unable “to undertake other efforts to end\\nunlawful housing practices”); El Rescate Legal Servs., Inc.\\nv. Exec. Office of Immigration Review, 959 F.2d 742, 748\\n(9th Cir. 1991) (finding organizational standing where\\nplaintiffs “expend[ed] resources in representing clients they\\notherwise would spend in other ways”).\\n\\n Here, the only resource the Association claims it diverted\\nas a result of the New Policy is the time one of its two staff\\n\\f16 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\nattorneys took to handle a single intake call from an Army\\nparent. The staff attorney “explained the Army’s history of\\npolicies and practices, the [New] Policy, the famil[y’s] rights\\nunder federal law, and next steps in advocating for their\\nchild.” According to the Association, that call prevented the\\nstaff attorney from taking other calls concerning\\ndiscriminatory practices.\\n\\n Such evidence shows that, unlike the plaintiffs in Havens\\nRealty and our cases applying it, the Association did not\\ndivert any resources but was merely going about its business\\nas usual. Its staff attorneys dedicate a portion of their time\\nto taking calls, and one Army parent used that service. The\\nAssociation has not shown that, at the time the operative\\ncomplaint was filed and as a result of the New Policy, the\\nAssociation had altered or intended to alter its resource\\nallocation to allow its attorneys to take a higher volume of\\ncalls or separately address the New Policy. See Scott v.\\nPasadena Unified Sch. Dist., 306 F.3d 646, 655 (9th Cir.\\n2002) (holding that courts “must consider the facts as they\\nexisted at the time that the complaint was filed”). Thus, the\\ncourt did not err by finding the Association failed to establish\\norganizational standing. 2\\n\\n 2\\n Because the Association has failed to show any diversion of\\nresources under Havens Realty, the Association’s reliance on United\\nStates v. Students Challenging Regulatory Agency Procedures (SCRAP),\\n412 U.S. 669, 689 n.14 (1973), for the proposition that the staff\\nattorney’s inability to take other calls constitutes an “identifiable trifle”\\nsufficient to confer standing is misplaced. For the same reason, we need\\nnot and do not reach the Association and amici’s contentions that the\\ncourt erred by (1) imposing a quantitative threshold on resource\\ndiversion (i.e., requiring the Association show it redirected enough\\nresources to “perceptibly impair” its mission); and (2) holding that the\\nresources must be expended outside the organization’s usual scope of\\nwork.\\n\\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 17\\n\\n b. Representational Standing\\n\\n An organization has standing to sue on behalf of its\\nmembers where: “(a) its members would otherwise have\\nstanding to sue in their own right; (b) the interests it seeks to\\nprotect are germane to the organization’s purposes; and\\n(c) neither the claim asserted nor the relief requested\\nrequires the participation of individual members in the\\nlawsuit.” Ecological Rights Found. v. Pac. Lumber Co.,\\n230 F.3d 1141, 1147 (9th Cir. 2000) (quoting Hunt v. Wash.\\nState Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)).\\nHere, the interests the Association seeks to protect are\\ngermane to its purpose and no claim asserted or relief\\nrequested requires the participation of the Association’s\\nmembers. Thus, we must determine whether any of the\\nAssociation’s members have standing to sue in their own\\nright.\\n\\n In that regard, the Association contends the New\\nPolicy’s accommodation procedures have deterred two of its\\nmembers, Bendlin and Brantly, from enrolling their eligible\\ndiabetic children in CYSS programs. 3 In support of its\\nposition, the Association relies on our case law under the\\nAmericans with Disabilities Act (“ADA”), wherein we have\\nfound standing where plaintiffs have “actual knowledge” of\\nan access barrier and are deterred from accessing the\\naccommodation as a result. See Civil Rights Educ. & Enf’t\\nCtr. v. Hosp. Props. Tr., 867 F.3d 1093, 1099 (9th Cir. 2017)\\n\\n\\n\\n 3\\n Defendants contend the Association was required to identify in its\\ncomplaint the members on which it relies and failed to do so. However,\\nthe Association asserted representational standing in the FAC and\\nprovided declarations from Bendlin and Brantly in response to\\ndefendants’ Rule 12(b)(1) motion to dismiss. That is sufficient.\\n\\f18 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\n(“It is the plaintiff’s ‘actual knowledge’ of a barrier, rather\\nthan the source of that knowledge, that is determinative.”).\\n\\n Defendants contend such ADA cases are inapplicable\\nbecause where, as here, a plaintiff seeks accommodation in\\na government program (rather than a public accommodation)\\nthe plaintiff must “provide the governmental entity an\\nopportunity to accommodate them through the entity’s\\nestablished procedures used to adjust the neutral policy in\\nquestion.” Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d\\n565, 578–79 (2d Cir. 2003); see also Oxford House-C v. City\\nof St. Louis, 77 F.3d 249, 253 (8th Cir. 1996) (holding the\\nplaintiff’s Fair Housing Act claim unripe where the plaintiff\\nrefused to apply for a zoning variance). However, the\\nplaintiffs in those cases refused to seek variances from the\\nchallenged practices through the defendant’s unchallenged\\naccommodation procedures. Tsombanidis, 352 F.3d at 579;\\nOxford House-C, 77 F.3d at 253. Here, the Association\\nseeks to bring a facial challenge to the accommodation\\nprocedures themselves. Thus, failure to first seek\\naccommodation thereunder does not render the\\nAssociation’s claims unripe.\\n\\n Defendants do not argue that our cases analyzing\\nstanding in the ADA context are otherwise inapplicable.\\nIndeed, “[t]here is no significant difference in analysis of the\\nrights and obligations created by the ADA and the\\nRehabilitation Act,” Zukle v. Regents of Univ. of Cal.,\\n166 F.3d 1041, 1045 n.11 (9th Cir. 1999), and any difference\\nin the statutes’ application or standards for relief on the\\nmerits is irrelevant to the question of what constitutes an\\nArticle III injury, cf. Kirola v. City & Cty. of San Francisco,\\n860 F.3d 1164, 1174 n.3 (9th Cir. 2017) (holding that,\\ndespite different applications of Title II (discrimination in\\npublic services) and Title III (discrimination in public\\n\\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 19\\n\\naccommodations) of the ADA, “the answer to the\\nconstitutional question of what amounts to injury under\\nArticle III is the same”). Thus, if Bendlin or Brantly had\\nactual knowledge of the New Policy’s challenged provisions\\nat the time the operative complaint was filed and have been\\ndeterred from enrolling their otherwise eligible diabetic\\nchildren as a result, they, and thus the Association, have\\nstanding. See Scott, 306 F.3d at 655. 4\\n\\n The operative complaint was filed on July 21, 2017. In\\ntheir declarations, executed August 17, 2017, and August 18,\\n2017, respectively, Bendlin and Brantly aver that they\\n“recently learned” the Army revised its policy and that the\\nAssociation provided them with a copy of the revised policy\\non August 14. Both then state that, having “reviewed [the]\\nrevised policy,” they take issue with its provisions. Even\\nwhen viewed in the light most favorable to the Association,\\nsuch statements are insufficient to show either Bendlin or\\nBrantly had actual knowledge of the challenged provisions\\nat the time the operative complaint was filed. See Leite v.\\nCrane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (“When the\\ndefendant raises a factual attack [under Rule 12(b)(1)], the\\nplaintiff must support her jurisdictional allegations with\\n‘competent proof,’ under the same evidentiary standard that\\ngoverns in the summary judgment context.” (citation\\n\\n 4\\n To the extent the Association contends Brantly suffered an injury\\nseparate and apart from being deterred because her child attended a\\nCYSS program from June 12 (the day the New Policy was adopted) to\\nJune 30, 2017, and was not afforded insulin accommodations during that\\nperiod, the Association’s reliance thereon is unavailing. As “past wrongs\\ndo not in themselves amount to [a] real and immediate threat of injury\\nnecessary to make out a case or controversy” for prospective relief, City\\nof Los Angeles v. Lyons, 461 U.S. 95, 103 (1983), Brantly’s standing\\nrests on whether she has been deterred.\\n\\f20 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\nomitted)). Thus, the court did not err by finding the\\nAssociation failed to establish representational standing. 5\\n\\n CONCLUSION\\n\\n For the reasons set forth above, any challenge to the Old\\nPolicy is moot, and the Association lacks standing to\\nchallenge the New Policy.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 5\\n In the facts section of its brief, the Association mentions a third\\nmember, Erwin, who avers: “I received a copy of CYSS’s revised policy\\nfrom the Association on August 14. I reviewed it, and I am still not sure\\nif it is worth the trouble in trying to get the accommodations again.”\\nSuch statements are similarly insufficient to show the declarant had\\nactual knowledge of the challenged provisions on July 21, 2017.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4439289/\", \"author_raw\": \"HAWKINS, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"EUGENE E SILER"},"judge2":{"kind":"string","value":"MICHAEL DALY HAWKINS"},"judge3":{"kind":"string","value":"JACQUELINE H NGUYEN"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4662036/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: American Diabetes Ass'n v. US Dept. of the Army\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nAMERICAN DIABETES ASSOCIATION, No. 18-15242\n Plaintiff-Appellant,\n D.C. No.\n v. 5:16-cv-04051-\n LHK\nUNITED STATES DEPARTMENT OF THE\nARMY; RYAN D. MCCARTHY,\nSecretary of the Army, in his official OPINION\ncapacity; UNITED STATES ARMY\nFAMILY AND MORALE, WELFARE\nAND RECREATION PROGRAMS;\nUNITED STATES ARMY CHILD,\nYOUTH AND SCHOOL SERVICES,\n Defendants-Appellees.\n\n Appeal from the United States District Court\n for the Northern District of California\n Lucy H. Koh, District Judge, Presiding\n\n Argued and Submitted August 5, 2019\n San Francisco, California\n\n Filed September 18, 2019\n\f2 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\n\n Before: Eugene E. Siler, * Michael Daly Hawkins,\n and Jacqueline H. Nguyen, Circuit Judges.\n\n Opinion by Judge Hawkins\n\n\n SUMMARY **\n\n\n Mootness / Standing\n\n The panel affirmed the district court’s Fed. R. Civ. P.\n12(b)(1) dismissal of the American Diabetes Association’s\nFirst Amended Complaint seeking injunctive and\ndeclaratory relief under Section 504 of the Rehabilitation\nAct concerning defendants’ provision of diabetes-related\ncare in the U.S. Army’s Child, Youth, and School Services’\n(“CYSS”) programs.\n\n The Association is a nationwide non-profit that has\nassisted families that have assertedly experienced diabetes-\nrelated discrimination in the CYSS programs. CYSS\noperates programs that are sometimes the only childcare\noptions for families working and living on Army bases in\nremote areas.\n\n In July 2016, when the lawsuit began, the Army had in\nplace U.S. Army Regulation 608-10 and 2008 Family and\nMorale, Welfare and Recreation Command Memorandum\n\n *\n The Honorable Eugene E. Siler, United States Circuit Judge for the\nU.S. Court of Appeals for the Sixth Circuit, sitting by designation.\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 3\n\n(the “Old Policy”) which prohibited CYSS staff from\nproviding essential medical care for diabetic children. In\nJune 2017, defendants revoked the Old Policy and replaced\nit with a “New Policy” that provides for possible diabetes-\nrelated accommodations.\n\n The panel held that the Association’s challenge to the\nOld Policy, as well as the injuries incurred thereunder, were\nmoot where the Association sought only prospective relief.\nSpecifically, the panel held that defendants satisfied their\nburden of clearly showing they cannot reasonably be\nexpected to reinstitute the Old Policy’s blanket prohibition\non care. The panel rejected the Association’s contention that\nthe voluntary cessation exception to mootness applied.\n\n The panel held that the Association lacked standing to\nchallenge the New Policy. Specifically, first, the panel held\nthat the district court did not err by finding the Association\nfailed to establish organizational standing where the\nAssociation did not show it diverted resources to combat the\nNew Policy, and thereby, did not establish ”injury in fact.”\nSecond, the panel held that the Association failed to establish\nrepresentational standing where none of its members had\nstanding to sue in their own right. The panel held that none\nof the members had actual knowledge of the challenged\nprovisions at the time the operative complaint was filed, and\ntherefore, they would not have been deterred from enrolling\ntheir otherwise eligible diabetic children as a result.\n\f4 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\n\n COUNSEL\n\nStuart Seaborn (argued), Rebecca Williford, Jessica\nAgatstein, and Freya Pitts, Disability Rights Advocates,\nBerkeley, California, for Plaintiff-Appellant.\n\nEdward Himmelfarb (argued) and Marleigh D. Dover,\nAppellate Staff; Alex G. Tse, Acting United States Attorney;\nHashim M. Mooppan, Deputy Assistant Attorney General;\nCivil Division, United States Department of Justice,\nWashington, D.C.; for Defendants-Appellees.\n\nMichael A. Greene, Richardson Wright LLP, Portland,\nOregon; Gregory G. Paul, Morgan & Paul PLLC, Pittsburgh,\nPennsylvania; John W. Griffin, Marek Griffin & Knaupp,\nVictoria, Texas; for Amicus Curiae Pediatric Diabetes\nCommunity.\n\nJocelyn Larkin, Lindsay Nako, and Daniel Nesbit, Impact\nFund, Berkeley, California, for Amici Curiae Impact Fund,\nAARP, AARP Foundation, Animal Legal Defense Fund,\nBay Area Legal Aid, Civil Rights Education and\nEnforcement Center, Law Foundation of Silicon Valley,\nLegal Aid Association of California, Legal Aid at Work,\nLegal Aid Foundation of Los Angeles, Legal Services for\nPrisoners with Children, National Women’s Law Center,\nPublic Interest Law Project, Southern Poverty Law Center,\nand Worksafe Inc.\n\nTodd R. Geremia, Jones Day, New York, New York; Eli M.\nTemkin, Jones Day, Minneapolis, Minnesota; for Amici\nCuriae Disability Rights Organizations.\n\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 5\n\n OPINION\n\nHAWKINS, Circuit Judge:\n\n BACKGROUND\n\n The American Diabetes Association (the “Association”)\nis a nationwide nonprofit with a mission “to prevent and cure\ndiabetes and to improve the lives of those affected by\ndiabetes.” In furtherance of its mission, the Association,\ninter alia, “conduct[s] advocacy for laws, regulations, and\npolicies that keep children with diabetes safe at school; . . .\n[and] provid[es] legal information and assistance to\nindividuals and families experiencing diabetes-related\ndiscrimination.” Over the past decade, the Association has\nassisted families that have assertedly experienced diabetes-\nrelated discrimination in the Army’s Child, Youth, and\nSchool Services’ (“CYSS”) programs. CYSS operates\nprograms such as daycare, after-school care, and summer\ncamps for children and youth on military bases (among\nothers). These programs are sometimes the only childcare\noptions for families working and living on bases in remote\nareas.\n\n I. The Old Policy\n\n In July 2016, when this lawsuit began, the Army had in\nplace United States Army Regulation 608-10 and a 2008\nFamily and Morale, Welfare and Recreation Command\nMemorandum (collectively, “Old Policy”), which together\nprohibited CYSS staff from providing essential medical care\nfor diabetic children. This version of Regulation 608-10\nincluded a statement that:\n\n [CYSS staff] will not perform functions that\n require extensive medical knowledge (e.g.,\n\f6 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\n\n determining the dosage or frequency of a\n prescribed medication); are considered\n medical intervention therapy (e.g., those not\n typically taught to parents by physical,\n occupational, speech therapists or special\n educators as part of a home program); or if\n improperly performed, have a high medical\n risk (e.g., injection of insulin).\n\nThe 2008 memorandum stated that staff therefore were not\nauthorized to “[c]ount carbohydrates,” “[g]ive injections of\ninsulin to include manipulation of the insulin pump which is\nan alternate method of delivering insulin,” or “[g]ive\ninjections of Glucagon, a rescue medication.” Although the\nArmy sometimes granted exceptions to the Old Policy, there\nwas no formal process for seeking or considering exceptions.\n\n II. The New Policy\n\n In June 2017, after plaintiffs filed their initial complaint,\ndefendants revoked the Old Policy and replaced it with three\ndocuments: (1) a revised Regulation 608-10; (2) an Army\nmemorandum titled “Diabetes-Related Accommodations in\nChild, Youth, and School Services Programs” (“Diabetes\nMemorandum”); and (3) an Army memorandum titled\n“Accommodation of Children and Youth with Diabetes in\nArmy Child, Youth, and School Services Programs”\n(“Accommodation Memorandum”) (collectively, “New\nPolicy”). The amended Regulation 608-10 states that all\n“requests for accommodation must be reviewed and assessed\nindividually” and that CYSS programs “must provide\nspecial needs accommodations unless the requested\naccommodation imposes an undue hardship on the Army,\nfundamentally alters the [CYSS] program in which the\n\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 7\n\naccommodation is being made, or poses a direct threat to\nstaff or other participants in the program.”\n\n The Diabetes Memorandum, inter alia, “rescind[s] in\n[its] entirety” the 2008 memorandum, declares that staff may\nprovide accommodations such as counting carbohydrates\nand administering glucagon, and provides that only the\nArmy’s Assistant Chief of Staff for Installation Management\n(“ACSIM”) may deny an accommodation request.\n\n The Accommodation Memorandum identifies counting\ncarbohydrates and administering insulin and rescue\nmedication as “[r]easonable accommodations” and sets forth\na multi-step process through which accommodation requests\nwill be considered. Thereunder, requests that do not\n(1) require CYSS staff “to determine the correct insulin\ndosage or to administer insulin,” or (2) meet a set of narrow\ncircumstances, such as imposing “an undue hardship” on the\nArmy, must be approved by the installation’s CYSS\nCoordinator and implemented within ten weeks. However,\nif the CYSS Coordinator’s recommendation is to deny the\nrequest or the request requires CYSS staff “to determine the\ncorrect insulin dosage or to administer insulin,” the matter\nmust be submitted to the Garrison Commander, who must\neither approve the request or make a recommendation to the\nACSIM. Thus, it can take up to four months for insulin\naccommodations to be fully approved and implemented.\n\n III. Procedural Background\n\n The Association filed its initial complaint in 2016,\nseeking injunctive and declaratory relief for violations of\nSection 504 of the Rehabilitation Act, 29 U.S.C. § 794.\nSpecifically, the Association challenged defendants’\n“blanket policy prohibiting the provision of critical diabetes-\nrelated care.” On July 21, 2017, around six weeks after\n\f8 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\n\ndefendants instituted the New Policy, the Association filed\nthe operative amended complaint (“FAC”). Therein, the\nAssociation, again seeking only prospective relief, alleges\nthe New Policy violates Section 504 of the Rehabilitation\nAct by creating an impermissibly “burdensome\naccommodation review process.”\n\n Defendants moved to dismiss the FAC under Federal\nRule of Civil Procedure 12(b)(1), arguing the Association’s\nclaims against the Old Policy were moot and the Association\nlacks standing to challenge the New Policy. The court\ngranted the motion and dismissed the FAC with leave to\namend. Thereafter, the Association filed notice of its intent\nto stand on its pleading, and the court entered a final\nJudgment of Dismissal. This timely appeal followed.\n\n STANDARD OF REVIEW\n\n We review de novo a dismissal for mootness and lack of\nArticle III standing. Bishop Paiute Tribe v. Inyo Cty.,\n863 F.3d 1144, 1151 (9th Cir. 2017). Where, as here, a\ndefendant brings a factual jurisdictional attack under Rule\n12(b)(1), the “court may review evidence beyond the\ncomplaint without converting the motion to dismiss into a\nmotion for summary judgment.” Safe Air for Everyone v.\nMeyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “Once the\nmoving party has converted the motion to dismiss into a\nfactual motion by presenting affidavits or other evidence\nproperly brought before the court, the party opposing the\nmotion must furnish affidavits or other evidence necessary\nto satisfy its burden of establishing subject matter\njurisdiction.” Id. (quoting Savage v. Glendale Union High\nSch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)).\n\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 9\n\n DISCUSSION\n\n The Association contends the district court erred by\nconcluding the injuries the Association suffered under the\nOld Policy are moot and that the Association lacks standing\nto challenge the New Policy. We address each argument in\nturn.\n\n I. Mootness\n\n The Association contends its injuries under the Old\nPolicy are not moot because: (1) the New Policy continues\nto violate the Rehabilitation Act; and (2) the voluntary\ncessation doctrine applies.\n\n a. Repeal and Replacement as Settling the\n Controversy Regarding the Old Policy\n\n “A case becomes moot . . . ‘when the issues presented\nare no longer “live” or the parties lack a legally cognizable\ninterest in the outcome.’” Rosebrock v. Mathis, 745 F.3d\n963, 971 (9th Cir. 2014) (quoting Already, LLC v. Nike, Inc.,\n568 U.S. 85, 89 (2013)). Where the challenged conduct “has\nbeen ‘sufficiently altered so as to present a substantially\ndifferent controversy . . . [,] there is ‘no basis for concluding\nthat the challenged conduct [is] being repeated.’” Chem.\nProducers & Distribs. Ass’n v. Helliker, 463 F.3d 871, 875\n(9th Cir. 2006) (third alteration in original) (quoting Ne. Fla.\nChapter of Associated Gen. Contractors of Am. v. City of\nJacksonville, 508 U.S. 656, 662 n.3 (1993)). The\nAssociation, citing Northeastern Florida, argues the New\nPolicy continues to discriminate against persons with\ndiabetes and thus does not moot the Association’s claims\nunder the Old Policy. There, however, the new city\nordinance continued the challenged practice “by another\n\f10 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\n\nname” and thus “disadvantage[d] [the plaintiff] in the same\nfundamental way.” 508 U.S. at 662.\n\n Here, by contrast, the Association alleges the Old Policy\nharmed it by placing a blanket prohibition on care, whereas\nthe New Policy allegedly harms the Association by\ninstituting a burdensome approval process. As it is\nundisputed that the New Policy repealed the blanket\nprohibition and specifically lists the subject\naccommodations as reasonable, the policy “has been\n‘sufficiently altered so as to present a substantially different\ncontroversy.’” Helliker, 463 F.3d at 875 (quoting Ne. Fla.\nChapter of Associated Gen. Contractors of Am., 508 U.S.\nat 662 n.3); see Outdoor Media Grp., Inc. v. City of\nBeaumont, 506 F.3d 895, 901 (9th Cir. 2007) (holding\nclaims for injunctive and declaratory relief moot where “the\nconstitutional deficiencies . . . alleged in connection with the\noriginal sign ordinance” had been cured).\n\n b. Voluntary Cessation\n\n The Association also argues the voluntary cessation\nexception to mootness applies. Thereunder, “[t]he voluntary\ncessation of challenged conduct does not ordinarily render a\ncase moot because a dismissal for mootness would permit a\nresumption of the challenged conduct as soon as the case is\ndismissed.” Rosebrock, 745 F.3d at 971 (quoting Knox v.\nServ. Employees Int’l Union, Local 1000, 567 U.S. 298, 306\n(2012)). Thus, although courts “presume that a government\nentity is acting in good faith when it changes its policy, . . .\nwhen the Government asserts mootness based on such a\nchange it still must bear the heavy burden of showing that\nthe challenged conduct cannot reasonably be expected to\nstart up again.” Id. (citation omitted). It may do so by\npersuading the court that “the change in its behavior is\n‘entrenched’ or ‘permanent.’” Fikre v. FBI, 904 F.3d 1033,\n\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 11\n\n1037 (9th Cir. 2018) (quoting McCormack v. Herzog,\n788 F.3d 1017, 1025 (9th Cir. 2015)). 1\n\n The Association contends the district court erred by\nfinding the government automatically satisfied its burden by\namending Regulation 608-10. According to the Association,\nthe court should have applied the framework outlined in\nRosebrock, which expressly applies to policy changes “not\nreflected in statutory changes or even in changes in\nordinances or regulations.” 745 F.3d at 963. This is so, the\nAssociation argues, because, while the regulatory\namendment “deleted the prohibition on insulin\naccommodations,” “all substantive provisions appear in\n[the] policy memoranda that could be changed at any time.”\n\n Even assuming Rosebrock’s “loose framework” of non-\nexhaustive considerations is applicable here, defendants\nhave shown the conduct the Association challenged under\nthe Old Policy—the blanket refusal to provide diabetes-\nrelated care—cannot reasonably be expected to recur.\n\n First, “the policy change is evidenced by language that is\n‘broad in scope and unequivocal in tone.’” Rosebrock,\n745 F.3d at 972 (quoting White v. Lee, 227 F.3d 1214, 1243\n(9th Cir. 2000)). The New Policy unequivocally renounces\nthe previously challenged prohibition on care and\nRegulation 608-10 now provides that CYSS “must provide\nspecial needs accommodations” unless a set of narrow\ncircumstances, such as “undue hardship,” are present.\n\n 1\n Where, as here, the defendant has voluntarily ceased its challenged\nconduct, the mootness inquiry bears “on the question whether a court\nshould exercise its power to enjoin the defendant from renewing the\npractice, but that is a matter relating to the exercise rather than the\nexistence of judicial power.” City of Mesquite v. Aladdin’s Castle, Inc.,\n455 U.S. 283, 289 (1982).\n\f12 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\n\nFurther, the interpretive memoranda identify diabetic\naccommodations as reasonable and announce a policy of\n“promot[ing] the participation and inclusion of children and\nyouth with diabetes in [CYSS] programs and activities.”\n\n Second, the New Policy “addresses all of the\nobjectionable measures that [the Government] officials took\nagainst the plaintiffs” under the Old Policy. Id. (alteration\nin original) (quoting White, 227 F.3d at 1243). Although the\nAssociation contends the New Policy is infirm for other\nreasons, the challenged prohibition on care has been\nrepealed.\n\n Third, the Association concedes that this case “was the\ncatalyst for the [government’s] adoption of the new policy.”\nId. (quoting White, 227 F.3d at 1243). This weighs in favor\nof a finding of mootness. Id.\n\n Fourth, the New Policy has been in place for a relatively\nlong time—over two years. Cf. id. at 974 (finding this\nconsideration weighed in favor of a finding of mootness\nwhere, at the time the court issued its opinion, the policy had\nbeen in place for more than three years).\n\n The fifth consideration, whether, since the New Policy’s\nimplementation, defendants “have not engaged in conduct\nsimilar to that challenged by the plaintiff,” id. (quoting\nWhite, 227 F.3d at 1243), also weighs in favor of a finding\nof mootness. The Association relies on declarations from\nparents who state that, about two months after the New\nPolicy was instituted, certain CYSS staff remained unaware\nof the change. However, although the declarations evidence\nsome confusion in CYSS’s transition to the New Policy, they\nshow that, rather than continuing to enforce the Old Policy,\nCYSS subjected new requests to the New Policy’s\nprocedures.\n\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 13\n\n Lastly, while a lack of “‘procedural safeguards’\ninsulating the new state of affairs from arbitrary reversal”\ncan counsel against mootness, Fikre, 904 F.3d at 1039, and\ndefendants have not offered evidence showing what\nprocedures insulate the New Policy, the policy change is\nenshrined, at least in part, in a regulatory revision, and thus\nstands in stark contrast to the policy changes this court has\nfound insufficient to render claims moot, cf. id. at 1039–40\n(FBI’s decision to remove plaintiff from the no fly list was\n“an individualized determination untethered to any\nexplanation or change in policy, much less an abiding\nchange in policy”); Bell v. City of Boise, 709 F.3d 890, 900–\n01 (9th Cir. 2013) (where, inter alia, “the authority to\nestablish policy for the Boise Police Department is vested\nentirely in the Chief of Police,” that official’s unilateral\n“Special Order” did not moot case).\n\n Under these circumstances, defendants have satisfied\ntheir burden of clearly showing they cannot reasonably be\nexpected to reinstitute the Old Policy’s blanket ban. Thus,\nas the Association seeks only prospective relief, its challenge\nto that policy, as well as the injuries incurred thereunder, are\nmoot.\n\n II. The Association’s Standing to Challenge the New\n Policy\n\n The Association contends that, even absent injuries\nincurred under the Old Policy, it has standing to challenge\nthe New Policy on its own behalf and on behalf of its\nmembers. Either basis would be sufficient to confer\nstanding, Am. Civil Liberties Union of Nevada v. Heller,\n378 F.3d 979, 983 (9th Cir. 2004), and we address each in\nturn.\n\f14 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\n\n a. Organizational Standing\n\n The Association contends it diverted resources to combat\nthe New Policy and thus has standing to sue on its own\nbehalf. This theory of standing has its roots in Havens Realty\nCorp. v. Coleman, 455 U.S. 363 (1982). There, a fair\nhousing organization claimed the defendant’s discriminatory\nhousing practices “frustrated” the organization’s “ability to\nprovide counseling and referral services for low- and\nmoderate-income homeseekers,” and had forced the\norganization “to devote significant resources to identify and\ncounteract the” alleged discriminatory practices. Id. at 379.\nThus, the organization established a “concrete and\ndemonstrable injury to [its] activities—with the consequent\ndrain on the organization’s resources—[that] constitute[d]\nfar more than simply a setback to the organization’s abstract\nsocial interests.” Id.\n\n Thus, under Havens Realty, an organization may\nestablish “injury in fact if it can demonstrate: (1) frustration\nof its organizational mission; and (2) diversion of its\nresources to combat the particular [conduct] in question.”\nSmith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1105 (9th\nCir. 2004). For example, in East Bay Sanctuary Covenant v.\nTrump, 909 F.3d 1219 (9th Cir. 2018), as amended by 2018\nWL 8807133 (9th Cir. December 7, 2018), the plaintiff\norganizations created “education and outreach initiatives\nregarding the [challenged] rule.” Id. at 1242. In National\nCouncil of La Raza v. Cegavske, 800 F.3d 1032 (9th Cir.\n2015), to counteract alleged voter registration violations,\ncivil rights groups “expend[ed] additional resources” that\n“they would have spent on some other aspect of their\norganizational purpose.” Id. at 1039. In these cases, the\nplaintiffs were not “simply going about their ‘business as\nusual,’” id. at 1040–41, but had altered their resource\n\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 15\n\nallocation to combat the challenged practices, see also Valle\ndel Sol Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013)\n(finding organizational standing where the plaintiffs “had to\ndivert resources to educational programs to address its\nmembers’ and volunteers’ concerns about the [challenged]\nlaw’s effect”); Fair Hous. Council of San Fernando Valley\nv. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012)\n(finding organizational standing where the plaintiff, in\nresponse to the defendant’s challenged practices, “started\nnew education and outreach campaigns targeted at\ndiscriminatory roommate advertising”); Comite de\nJornaleros de Redondo Beach v. City of Redondo Beach, 657\nF.3d 936, 943–44 (9th Cir. 2011) (finding organizational\nstanding where resources directed toward “assisting day\nlaborers during their arrests and meeting with workers about\nthe status of the [challenged] ordinance would have\notherwise been expended toward [the advocacy group’s]\ncore organizing activities”); Smith, 358 F.3d at 1105 (finding\norganizational standing where complaint was dismissed\nwithout leave to amend and plaintiff alleged it “divert[ed] its\nscarce resources from other efforts” so it could “monitor the\n[subject] violations and educate the public regarding the\ndiscrimination”); Fair Hous. of Marin v. Combs, 285 F.3d\n899, 905 (9th Cir. 2002) (finding organizational standing\nwhere plaintiff alleged it had expended thousands of dollars\nto “redress[] the impact” of defendant’s discrimination and,\nas a result, was unable “to undertake other efforts to end\nunlawful housing practices”); El Rescate Legal Servs., Inc.\nv. Exec. Office of Immigration Review, 959 F.2d 742, 748\n(9th Cir. 1991) (finding organizational standing where\nplaintiffs “expend[ed] resources in representing clients they\notherwise would spend in other ways”).\n\n Here, the only resource the Association claims it diverted\nas a result of the New Policy is the time one of its two staff\n\f16 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\n\nattorneys took to handle a single intake call from an Army\nparent. The staff attorney “explained the Army’s history of\npolicies and practices, the [New] Policy, the famil[y’s] rights\nunder federal law, and next steps in advocating for their\nchild.” According to the Association, that call prevented the\nstaff attorney from taking other calls concerning\ndiscriminatory practices.\n\n Such evidence shows that, unlike the plaintiffs in Havens\nRealty and our cases applying it, the Association did not\ndivert any resources but was merely going about its business\nas usual. Its staff attorneys dedicate a portion of their time\nto taking calls, and one Army parent used that service. The\nAssociation has not shown that, at the time the operative\ncomplaint was filed and as a result of the New Policy, the\nAssociation had altered or intended to alter its resource\nallocation to allow its attorneys to take a higher volume of\ncalls or separately address the New Policy. See Scott v.\nPasadena Unified Sch. Dist., 306 F.3d 646, 655 (9th Cir.\n2002) (holding that courts “must consider the facts as they\nexisted at the time that the complaint was filed”). Thus, the\ncourt did not err by finding the Association failed to establish\norganizational standing. 2\n\n 2\n Because the Association has failed to show any diversion of\nresources under Havens Realty, the Association’s reliance on United\nStates v. Students Challenging Regulatory Agency Procedures (SCRAP),\n412 U.S. 669, 689 n.14 (1973), for the proposition that the staff\nattorney’s inability to take other calls constitutes an “identifiable trifle”\nsufficient to confer standing is misplaced. For the same reason, we need\nnot and do not reach the Association and amici’s contentions that the\ncourt erred by (1) imposing a quantitative threshold on resource\ndiversion (i.e., requiring the Association show it redirected enough\nresources to “perceptibly impair” its mission); and (2) holding that the\nresources must be expended outside the organization’s usual scope of\nwork.\n\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 17\n\n b. Representational Standing\n\n An organization has standing to sue on behalf of its\nmembers where: “(a) its members would otherwise have\nstanding to sue in their own right; (b) the interests it seeks to\nprotect are germane to the organization’s purposes; and\n(c) neither the claim asserted nor the relief requested\nrequires the participation of individual members in the\nlawsuit.” Ecological Rights Found. v. Pac. Lumber Co.,\n230 F.3d 1141, 1147 (9th Cir. 2000) (quoting Hunt v. Wash.\nState Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)).\nHere, the interests the Association seeks to protect are\ngermane to its purpose and no claim asserted or relief\nrequested requires the participation of the Association’s\nmembers. Thus, we must determine whether any of the\nAssociation’s members have standing to sue in their own\nright.\n\n In that regard, the Association contends the New\nPolicy’s accommodation procedures have deterred two of its\nmembers, Bendlin and Brantly, from enrolling their eligible\ndiabetic children in CYSS programs. 3 In support of its\nposition, the Association relies on our case law under the\nAmericans with Disabilities Act (“ADA”), wherein we have\nfound standing where plaintiffs have “actual knowledge” of\nan access barrier and are deterred from accessing the\naccommodation as a result. See Civil Rights Educ. & Enf’t\nCtr. v. Hosp. Props. Tr., 867 F.3d 1093, 1099 (9th Cir. 2017)\n\n\n\n 3\n Defendants contend the Association was required to identify in its\ncomplaint the members on which it relies and failed to do so. However,\nthe Association asserted representational standing in the FAC and\nprovided declarations from Bendlin and Brantly in response to\ndefendants’ Rule 12(b)(1) motion to dismiss. That is sufficient.\n\f18 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\n\n(“It is the plaintiff’s ‘actual knowledge’ of a barrier, rather\nthan the source of that knowledge, that is determinative.”).\n\n Defendants contend such ADA cases are inapplicable\nbecause where, as here, a plaintiff seeks accommodation in\na government program (rather than a public accommodation)\nthe plaintiff must “provide the governmental entity an\nopportunity to accommodate them through the entity’s\nestablished procedures used to adjust the neutral policy in\nquestion.” Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d\n565, 578–79 (2d Cir. 2003); see also Oxford House-C v. City\nof St. Louis, 77 F.3d 249, 253 (8th Cir. 1996) (holding the\nplaintiff’s Fair Housing Act claim unripe where the plaintiff\nrefused to apply for a zoning variance). However, the\nplaintiffs in those cases refused to seek variances from the\nchallenged practices through the defendant’s unchallenged\naccommodation procedures. Tsombanidis, 352 F.3d at 579;\nOxford House-C, 77 F.3d at 253. Here, the Association\nseeks to bring a facial challenge to the accommodation\nprocedures themselves. Thus, failure to first seek\naccommodation thereunder does not render the\nAssociation’s claims unripe.\n\n Defendants do not argue that our cases analyzing\nstanding in the ADA context are otherwise inapplicable.\nIndeed, “[t]here is no significant difference in analysis of the\nrights and obligations created by the ADA and the\nRehabilitation Act,” Zukle v. Regents of Univ. of Cal.,\n166 F.3d 1041, 1045 n.11 (9th Cir. 1999), and any difference\nin the statutes’ application or standards for relief on the\nmerits is irrelevant to the question of what constitutes an\nArticle III injury, cf. Kirola v. City & Cty. of San Francisco,\n860 F.3d 1164, 1174 n.3 (9th Cir. 2017) (holding that,\ndespite different applications of Title II (discrimination in\npublic services) and Title III (discrimination in public\n\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 19\n\naccommodations) of the ADA, “the answer to the\nconstitutional question of what amounts to injury under\nArticle III is the same”). Thus, if Bendlin or Brantly had\nactual knowledge of the New Policy’s challenged provisions\nat the time the operative complaint was filed and have been\ndeterred from enrolling their otherwise eligible diabetic\nchildren as a result, they, and thus the Association, have\nstanding. See Scott, 306 F.3d at 655. 4\n\n The operative complaint was filed on July 21, 2017. In\ntheir declarations, executed August 17, 2017, and August 18,\n2017, respectively, Bendlin and Brantly aver that they\n“recently learned” the Army revised its policy and that the\nAssociation provided them with a copy of the revised policy\non August 14. Both then state that, having “reviewed [the]\nrevised policy,” they take issue with its provisions. Even\nwhen viewed in the light most favorable to the Association,\nsuch statements are insufficient to show either Bendlin or\nBrantly had actual knowledge of the challenged provisions\nat the time the operative complaint was filed. See Leite v.\nCrane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (“When the\ndefendant raises a factual attack [under Rule 12(b)(1)], the\nplaintiff must support her jurisdictional allegations with\n‘competent proof,’ under the same evidentiary standard that\ngoverns in the summary judgment context.” (citation\n\n 4\n To the extent the Association contends Brantly suffered an injury\nseparate and apart from being deterred because her child attended a\nCYSS program from June 12 (the day the New Policy was adopted) to\nJune 30, 2017, and was not afforded insulin accommodations during that\nperiod, the Association’s reliance thereon is unavailing. As “past wrongs\ndo not in themselves amount to [a] real and immediate threat of injury\nnecessary to make out a case or controversy” for prospective relief, City\nof Los Angeles v. Lyons, 461 U.S. 95, 103 (1983), Brantly’s standing\nrests on whether she has been deterred.\n\f20 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\n\nomitted)). Thus, the court did not err by finding the\nAssociation failed to establish representational standing. 5\n\n CONCLUSION\n\n For the reasons set forth above, any challenge to the Old\nPolicy is moot, and the Association lacks standing to\nchallenge the New Policy.\n\n AFFIRMED.\n\n\n\n\n 5\n In the facts section of its brief, the Association mentions a third\nmember, Erwin, who avers: “I received a copy of CYSS’s revised policy\nfrom the Association on August 14. I reviewed it, and I am still not sure\nif it is worth the trouble in trying to get the accommodations again.”\nSuch statements are similarly insufficient to show the declarant had\nactual knowledge of the challenged provisions on July 21, 2017.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: American Diabetes Ass'n v. US Dept. of the Army\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-18\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nAMERICAN DIABETES ASSOCIATION, No. 18-15242\\n Plaintiff-Appellant,\\n D.C. No.\\n v. 5:16-cv-04051-\\n LHK\\nUNITED STATES DEPARTMENT OF THE\\nARMY; RYAN D. MCCARTHY,\\nSecretary of the Army, in his official OPINION\\ncapacity; UNITED STATES ARMY\\nFAMILY AND MORALE, WELFARE\\nAND RECREATION PROGRAMS;\\nUNITED STATES ARMY CHILD,\\nYOUTH AND SCHOOL SERVICES,\\n Defendants-Appellees.\\n\\n Appeal from the United States District Court\\n for the Northern District of California\\n Lucy H. Koh, District Judge, Presiding\\n\\n Argued and Submitted August 5, 2019\\n San Francisco, California\\n\\n Filed September 18, 2019\\n\\f2 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\n Before: Eugene E. Siler, * Michael Daly Hawkins,\\n and Jacqueline H. Nguyen, Circuit Judges.\\n\\n Opinion by Judge Hawkins\\n\\n\\n SUMMARY **\\n\\n\\n Mootness / Standing\\n\\n The panel affirmed the district court’s Fed. R. Civ. P.\\n12(b)(1) dismissal of the American Diabetes Association’s\\nFirst Amended Complaint seeking injunctive and\\ndeclaratory relief under Section 504 of the Rehabilitation\\nAct concerning defendants’ provision of diabetes-related\\ncare in the U.S. Army’s Child, Youth, and School Services’\\n(“CYSS”) programs.\\n\\n The Association is a nationwide non-profit that has\\nassisted families that have assertedly experienced diabetes-\\nrelated discrimination in the CYSS programs. CYSS\\noperates programs that are sometimes the only childcare\\noptions for families working and living on Army bases in\\nremote areas.\\n\\n In July 2016, when the lawsuit began, the Army had in\\nplace U.S. Army Regulation 608-10 and 2008 Family and\\nMorale, Welfare and Recreation Command Memorandum\\n\\n *\\n The Honorable Eugene E. Siler, United States Circuit Judge for the\\nU.S. Court of Appeals for the Sixth Circuit, sitting by designation.\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 3\\n\\n(the “Old Policy”) which prohibited CYSS staff from\\nproviding essential medical care for diabetic children. In\\nJune 2017, defendants revoked the Old Policy and replaced\\nit with a “New Policy” that provides for possible diabetes-\\nrelated accommodations.\\n\\n The panel held that the Association’s challenge to the\\nOld Policy, as well as the injuries incurred thereunder, were\\nmoot where the Association sought only prospective relief.\\nSpecifically, the panel held that defendants satisfied their\\nburden of clearly showing they cannot reasonably be\\nexpected to reinstitute the Old Policy’s blanket prohibition\\non care. The panel rejected the Association’s contention that\\nthe voluntary cessation exception to mootness applied.\\n\\n The panel held that the Association lacked standing to\\nchallenge the New Policy. Specifically, first, the panel held\\nthat the district court did not err by finding the Association\\nfailed to establish organizational standing where the\\nAssociation did not show it diverted resources to combat the\\nNew Policy, and thereby, did not establish ”injury in fact.”\\nSecond, the panel held that the Association failed to establish\\nrepresentational standing where none of its members had\\nstanding to sue in their own right. The panel held that none\\nof the members had actual knowledge of the challenged\\nprovisions at the time the operative complaint was filed, and\\ntherefore, they would not have been deterred from enrolling\\ntheir otherwise eligible diabetic children as a result.\\n\\f4 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\n COUNSEL\\n\\nStuart Seaborn (argued), Rebecca Williford, Jessica\\nAgatstein, and Freya Pitts, Disability Rights Advocates,\\nBerkeley, California, for Plaintiff-Appellant.\\n\\nEdward Himmelfarb (argued) and Marleigh D. Dover,\\nAppellate Staff; Alex G. Tse, Acting United States Attorney;\\nHashim M. Mooppan, Deputy Assistant Attorney General;\\nCivil Division, United States Department of Justice,\\nWashington, D.C.; for Defendants-Appellees.\\n\\nMichael A. Greene, Richardson Wright LLP, Portland,\\nOregon; Gregory G. Paul, Morgan & Paul PLLC, Pittsburgh,\\nPennsylvania; John W. Griffin, Marek Griffin & Knaupp,\\nVictoria, Texas; for Amicus Curiae Pediatric Diabetes\\nCommunity.\\n\\nJocelyn Larkin, Lindsay Nako, and Daniel Nesbit, Impact\\nFund, Berkeley, California, for Amici Curiae Impact Fund,\\nAARP, AARP Foundation, Animal Legal Defense Fund,\\nBay Area Legal Aid, Civil Rights Education and\\nEnforcement Center, Law Foundation of Silicon Valley,\\nLegal Aid Association of California, Legal Aid at Work,\\nLegal Aid Foundation of Los Angeles, Legal Services for\\nPrisoners with Children, National Women’s Law Center,\\nPublic Interest Law Project, Southern Poverty Law Center,\\nand Worksafe Inc.\\n\\nTodd R. Geremia, Jones Day, New York, New York; Eli M.\\nTemkin, Jones Day, Minneapolis, Minnesota; for Amici\\nCuriae Disability Rights Organizations.\\n\\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 5\\n\\n OPINION\\n\\nHAWKINS, Circuit Judge:\\n\\n BACKGROUND\\n\\n The American Diabetes Association (the “Association”)\\nis a nationwide nonprofit with a mission “to prevent and cure\\ndiabetes and to improve the lives of those affected by\\ndiabetes.” In furtherance of its mission, the Association,\\ninter alia, “conduct[s] advocacy for laws, regulations, and\\npolicies that keep children with diabetes safe at school; . . .\\n[and] provid[es] legal information and assistance to\\nindividuals and families experiencing diabetes-related\\ndiscrimination.” Over the past decade, the Association has\\nassisted families that have assertedly experienced diabetes-\\nrelated discrimination in the Army’s Child, Youth, and\\nSchool Services’ (“CYSS”) programs. CYSS operates\\nprograms such as daycare, after-school care, and summer\\ncamps for children and youth on military bases (among\\nothers). These programs are sometimes the only childcare\\noptions for families working and living on bases in remote\\nareas.\\n\\n I. The Old Policy\\n\\n In July 2016, when this lawsuit began, the Army had in\\nplace United States Army Regulation 608-10 and a 2008\\nFamily and Morale, Welfare and Recreation Command\\nMemorandum (collectively, “Old Policy”), which together\\nprohibited CYSS staff from providing essential medical care\\nfor diabetic children. This version of Regulation 608-10\\nincluded a statement that:\\n\\n [CYSS staff] will not perform functions that\\n require extensive medical knowledge (e.g.,\\n\\f6 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\n determining the dosage or frequency of a\\n prescribed medication); are considered\\n medical intervention therapy (e.g., those not\\n typically taught to parents by physical,\\n occupational, speech therapists or special\\n educators as part of a home program); or if\\n improperly performed, have a high medical\\n risk (e.g., injection of insulin).\\n\\nThe 2008 memorandum stated that staff therefore were not\\nauthorized to “[c]ount carbohydrates,” “[g]ive injections of\\ninsulin to include manipulation of the insulin pump which is\\nan alternate method of delivering insulin,” or “[g]ive\\ninjections of Glucagon, a rescue medication.” Although the\\nArmy sometimes granted exceptions to the Old Policy, there\\nwas no formal process for seeking or considering exceptions.\\n\\n II. The New Policy\\n\\n In June 2017, after plaintiffs filed their initial complaint,\\ndefendants revoked the Old Policy and replaced it with three\\ndocuments: (1) a revised Regulation 608-10; (2) an Army\\nmemorandum titled “Diabetes-Related Accommodations in\\nChild, Youth, and School Services Programs” (“Diabetes\\nMemorandum”); and (3) an Army memorandum titled\\n“Accommodation of Children and Youth with Diabetes in\\nArmy Child, Youth, and School Services Programs”\\n(“Accommodation Memorandum”) (collectively, “New\\nPolicy”). The amended Regulation 608-10 states that all\\n“requests for accommodation must be reviewed and assessed\\nindividually” and that CYSS programs “must provide\\nspecial needs accommodations unless the requested\\naccommodation imposes an undue hardship on the Army,\\nfundamentally alters the [CYSS] program in which the\\n\\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 7\\n\\naccommodation is being made, or poses a direct threat to\\nstaff or other participants in the program.”\\n\\n The Diabetes Memorandum, inter alia, “rescind[s] in\\n[its] entirety” the 2008 memorandum, declares that staff may\\nprovide accommodations such as counting carbohydrates\\nand administering glucagon, and provides that only the\\nArmy’s Assistant Chief of Staff for Installation Management\\n(“ACSIM”) may deny an accommodation request.\\n\\n The Accommodation Memorandum identifies counting\\ncarbohydrates and administering insulin and rescue\\nmedication as “[r]easonable accommodations” and sets forth\\na multi-step process through which accommodation requests\\nwill be considered. Thereunder, requests that do not\\n(1) require CYSS staff “to determine the correct insulin\\ndosage or to administer insulin,” or (2) meet a set of narrow\\ncircumstances, such as imposing “an undue hardship” on the\\nArmy, must be approved by the installation’s CYSS\\nCoordinator and implemented within ten weeks. However,\\nif the CYSS Coordinator’s recommendation is to deny the\\nrequest or the request requires CYSS staff “to determine the\\ncorrect insulin dosage or to administer insulin,” the matter\\nmust be submitted to the Garrison Commander, who must\\neither approve the request or make a recommendation to the\\nACSIM. Thus, it can take up to four months for insulin\\naccommodations to be fully approved and implemented.\\n\\n III. Procedural Background\\n\\n The Association filed its initial complaint in 2016,\\nseeking injunctive and declaratory relief for violations of\\nSection 504 of the Rehabilitation Act, 29 U.S.C. § 794.\\nSpecifically, the Association challenged defendants’\\n“blanket policy prohibiting the provision of critical diabetes-\\nrelated care.” On July 21, 2017, around six weeks after\\n\\f8 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\ndefendants instituted the New Policy, the Association filed\\nthe operative amended complaint (“FAC”). Therein, the\\nAssociation, again seeking only prospective relief, alleges\\nthe New Policy violates Section 504 of the Rehabilitation\\nAct by creating an impermissibly “burdensome\\naccommodation review process.”\\n\\n Defendants moved to dismiss the FAC under Federal\\nRule of Civil Procedure 12(b)(1), arguing the Association’s\\nclaims against the Old Policy were moot and the Association\\nlacks standing to challenge the New Policy. The court\\ngranted the motion and dismissed the FAC with leave to\\namend. Thereafter, the Association filed notice of its intent\\nto stand on its pleading, and the court entered a final\\nJudgment of Dismissal. This timely appeal followed.\\n\\n STANDARD OF REVIEW\\n\\n We review de novo a dismissal for mootness and lack of\\nArticle III standing. Bishop Paiute Tribe v. Inyo Cty.,\\n863 F.3d 1144, 1151 (9th Cir. 2017). Where, as here, a\\ndefendant brings a factual jurisdictional attack under Rule\\n12(b)(1), the “court may review evidence beyond the\\ncomplaint without converting the motion to dismiss into a\\nmotion for summary judgment.” Safe Air for Everyone v.\\nMeyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “Once the\\nmoving party has converted the motion to dismiss into a\\nfactual motion by presenting affidavits or other evidence\\nproperly brought before the court, the party opposing the\\nmotion must furnish affidavits or other evidence necessary\\nto satisfy its burden of establishing subject matter\\njurisdiction.” Id. (quoting Savage v. Glendale Union High\\nSch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)).\\n\\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 9\\n\\n DISCUSSION\\n\\n The Association contends the district court erred by\\nconcluding the injuries the Association suffered under the\\nOld Policy are moot and that the Association lacks standing\\nto challenge the New Policy. We address each argument in\\nturn.\\n\\n I. Mootness\\n\\n The Association contends its injuries under the Old\\nPolicy are not moot because: (1) the New Policy continues\\nto violate the Rehabilitation Act; and (2) the voluntary\\ncessation doctrine applies.\\n\\n a. Repeal and Replacement as Settling the\\n Controversy Regarding the Old Policy\\n\\n “A case becomes moot . . . ‘when the issues presented\\nare no longer “live” or the parties lack a legally cognizable\\ninterest in the outcome.’” Rosebrock v. Mathis, 745 F.3d\\n963, 971 (9th Cir. 2014) (quoting Already, LLC v. Nike, Inc.,\\n568 U.S. 85, 89 (2013)). Where the challenged conduct “has\\nbeen ‘sufficiently altered so as to present a substantially\\ndifferent controversy . . . [,] there is ‘no basis for concluding\\nthat the challenged conduct [is] being repeated.’” Chem.\\nProducers & Distribs. Ass’n v. Helliker, 463 F.3d 871, 875\\n(9th Cir. 2006) (third alteration in original) (quoting Ne. Fla.\\nChapter of Associated Gen. Contractors of Am. v. City of\\nJacksonville, 508 U.S. 656, 662 n.3 (1993)). The\\nAssociation, citing Northeastern Florida, argues the New\\nPolicy continues to discriminate against persons with\\ndiabetes and thus does not moot the Association’s claims\\nunder the Old Policy. There, however, the new city\\nordinance continued the challenged practice “by another\\n\\f10 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\nname” and thus “disadvantage[d] [the plaintiff] in the same\\nfundamental way.” 508 U.S. at 662.\\n\\n Here, by contrast, the Association alleges the Old Policy\\nharmed it by placing a blanket prohibition on care, whereas\\nthe New Policy allegedly harms the Association by\\ninstituting a burdensome approval process. As it is\\nundisputed that the New Policy repealed the blanket\\nprohibition and specifically lists the subject\\naccommodations as reasonable, the policy “has been\\n‘sufficiently altered so as to present a substantially different\\ncontroversy.’” Helliker, 463 F.3d at 875 (quoting Ne. Fla.\\nChapter of Associated Gen. Contractors of Am., 508 U.S.\\nat 662 n.3); see Outdoor Media Grp., Inc. v. City of\\nBeaumont, 506 F.3d 895, 901 (9th Cir. 2007) (holding\\nclaims for injunctive and declaratory relief moot where “the\\nconstitutional deficiencies . . . alleged in connection with the\\noriginal sign ordinance” had been cured).\\n\\n b. Voluntary Cessation\\n\\n The Association also argues the voluntary cessation\\nexception to mootness applies. Thereunder, “[t]he voluntary\\ncessation of challenged conduct does not ordinarily render a\\ncase moot because a dismissal for mootness would permit a\\nresumption of the challenged conduct as soon as the case is\\ndismissed.” Rosebrock, 745 F.3d at 971 (quoting Knox v.\\nServ. Employees Int’l Union, Local 1000, 567 U.S. 298, 306\\n(2012)). Thus, although courts “presume that a government\\nentity is acting in good faith when it changes its policy, . . .\\nwhen the Government asserts mootness based on such a\\nchange it still must bear the heavy burden of showing that\\nthe challenged conduct cannot reasonably be expected to\\nstart up again.” Id. (citation omitted). It may do so by\\npersuading the court that “the change in its behavior is\\n‘entrenched’ or ‘permanent.’” Fikre v. FBI, 904 F.3d 1033,\\n\\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 11\\n\\n1037 (9th Cir. 2018) (quoting McCormack v. Herzog,\\n788 F.3d 1017, 1025 (9th Cir. 2015)). 1\\n\\n The Association contends the district court erred by\\nfinding the government automatically satisfied its burden by\\namending Regulation 608-10. According to the Association,\\nthe court should have applied the framework outlined in\\nRosebrock, which expressly applies to policy changes “not\\nreflected in statutory changes or even in changes in\\nordinances or regulations.” 745 F.3d at 963. This is so, the\\nAssociation argues, because, while the regulatory\\namendment “deleted the prohibition on insulin\\naccommodations,” “all substantive provisions appear in\\n[the] policy memoranda that could be changed at any time.”\\n\\n Even assuming Rosebrock’s “loose framework” of non-\\nexhaustive considerations is applicable here, defendants\\nhave shown the conduct the Association challenged under\\nthe Old Policy—the blanket refusal to provide diabetes-\\nrelated care—cannot reasonably be expected to recur.\\n\\n First, “the policy change is evidenced by language that is\\n‘broad in scope and unequivocal in tone.’” Rosebrock,\\n745 F.3d at 972 (quoting White v. Lee, 227 F.3d 1214, 1243\\n(9th Cir. 2000)). The New Policy unequivocally renounces\\nthe previously challenged prohibition on care and\\nRegulation 608-10 now provides that CYSS “must provide\\nspecial needs accommodations” unless a set of narrow\\ncircumstances, such as “undue hardship,” are present.\\n\\n 1\\n Where, as here, the defendant has voluntarily ceased its challenged\\nconduct, the mootness inquiry bears “on the question whether a court\\nshould exercise its power to enjoin the defendant from renewing the\\npractice, but that is a matter relating to the exercise rather than the\\nexistence of judicial power.” City of Mesquite v. Aladdin’s Castle, Inc.,\\n455 U.S. 283, 289 (1982).\\n\\f12 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\nFurther, the interpretive memoranda identify diabetic\\naccommodations as reasonable and announce a policy of\\n“promot[ing] the participation and inclusion of children and\\nyouth with diabetes in [CYSS] programs and activities.”\\n\\n Second, the New Policy “addresses all of the\\nobjectionable measures that [the Government] officials took\\nagainst the plaintiffs” under the Old Policy. Id. (alteration\\nin original) (quoting White, 227 F.3d at 1243). Although the\\nAssociation contends the New Policy is infirm for other\\nreasons, the challenged prohibition on care has been\\nrepealed.\\n\\n Third, the Association concedes that this case “was the\\ncatalyst for the [government’s] adoption of the new policy.”\\nId. (quoting White, 227 F.3d at 1243). This weighs in favor\\nof a finding of mootness. Id.\\n\\n Fourth, the New Policy has been in place for a relatively\\nlong time—over two years. Cf. id. at 974 (finding this\\nconsideration weighed in favor of a finding of mootness\\nwhere, at the time the court issued its opinion, the policy had\\nbeen in place for more than three years).\\n\\n The fifth consideration, whether, since the New Policy’s\\nimplementation, defendants “have not engaged in conduct\\nsimilar to that challenged by the plaintiff,” id. (quoting\\nWhite, 227 F.3d at 1243), also weighs in favor of a finding\\nof mootness. The Association relies on declarations from\\nparents who state that, about two months after the New\\nPolicy was instituted, certain CYSS staff remained unaware\\nof the change. However, although the declarations evidence\\nsome confusion in CYSS’s transition to the New Policy, they\\nshow that, rather than continuing to enforce the Old Policy,\\nCYSS subjected new requests to the New Policy’s\\nprocedures.\\n\\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 13\\n\\n Lastly, while a lack of “‘procedural safeguards’\\ninsulating the new state of affairs from arbitrary reversal”\\ncan counsel against mootness, Fikre, 904 F.3d at 1039, and\\ndefendants have not offered evidence showing what\\nprocedures insulate the New Policy, the policy change is\\nenshrined, at least in part, in a regulatory revision, and thus\\nstands in stark contrast to the policy changes this court has\\nfound insufficient to render claims moot, cf. id. at 1039–40\\n(FBI’s decision to remove plaintiff from the no fly list was\\n“an individualized determination untethered to any\\nexplanation or change in policy, much less an abiding\\nchange in policy”); Bell v. City of Boise, 709 F.3d 890, 900–\\n01 (9th Cir. 2013) (where, inter alia, “the authority to\\nestablish policy for the Boise Police Department is vested\\nentirely in the Chief of Police,” that official’s unilateral\\n“Special Order” did not moot case).\\n\\n Under these circumstances, defendants have satisfied\\ntheir burden of clearly showing they cannot reasonably be\\nexpected to reinstitute the Old Policy’s blanket ban. Thus,\\nas the Association seeks only prospective relief, its challenge\\nto that policy, as well as the injuries incurred thereunder, are\\nmoot.\\n\\n II. The Association’s Standing to Challenge the New\\n Policy\\n\\n The Association contends that, even absent injuries\\nincurred under the Old Policy, it has standing to challenge\\nthe New Policy on its own behalf and on behalf of its\\nmembers. Either basis would be sufficient to confer\\nstanding, Am. Civil Liberties Union of Nevada v. Heller,\\n378 F.3d 979, 983 (9th Cir. 2004), and we address each in\\nturn.\\n\\f14 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\n a. Organizational Standing\\n\\n The Association contends it diverted resources to combat\\nthe New Policy and thus has standing to sue on its own\\nbehalf. This theory of standing has its roots in Havens Realty\\nCorp. v. Coleman, 455 U.S. 363 (1982). There, a fair\\nhousing organization claimed the defendant’s discriminatory\\nhousing practices “frustrated” the organization’s “ability to\\nprovide counseling and referral services for low- and\\nmoderate-income homeseekers,” and had forced the\\norganization “to devote significant resources to identify and\\ncounteract the” alleged discriminatory practices. Id. at 379.\\nThus, the organization established a “concrete and\\ndemonstrable injury to [its] activities—with the consequent\\ndrain on the organization’s resources—[that] constitute[d]\\nfar more than simply a setback to the organization’s abstract\\nsocial interests.” Id.\\n\\n Thus, under Havens Realty, an organization may\\nestablish “injury in fact if it can demonstrate: (1) frustration\\nof its organizational mission; and (2) diversion of its\\nresources to combat the particular [conduct] in question.”\\nSmith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1105 (9th\\nCir. 2004). For example, in East Bay Sanctuary Covenant v.\\nTrump, 909 F.3d 1219 (9th Cir. 2018), as amended by 2018\\nWL 8807133 (9th Cir. December 7, 2018), the plaintiff\\norganizations created “education and outreach initiatives\\nregarding the [challenged] rule.” Id. at 1242. In National\\nCouncil of La Raza v. Cegavske, 800 F.3d 1032 (9th Cir.\\n2015), to counteract alleged voter registration violations,\\ncivil rights groups “expend[ed] additional resources” that\\n“they would have spent on some other aspect of their\\norganizational purpose.” Id. at 1039. In these cases, the\\nplaintiffs were not “simply going about their ‘business as\\nusual,’” id. at 1040–41, but had altered their resource\\n\\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 15\\n\\nallocation to combat the challenged practices, see also Valle\\ndel Sol Inc. v. Whiting, 732 F.3d 1006, 1018 (9th Cir. 2013)\\n(finding organizational standing where the plaintiffs “had to\\ndivert resources to educational programs to address its\\nmembers’ and volunteers’ concerns about the [challenged]\\nlaw’s effect”); Fair Hous. Council of San Fernando Valley\\nv. Roommate.com, LLC, 666 F.3d 1216, 1219 (9th Cir. 2012)\\n(finding organizational standing where the plaintiff, in\\nresponse to the defendant’s challenged practices, “started\\nnew education and outreach campaigns targeted at\\ndiscriminatory roommate advertising”); Comite de\\nJornaleros de Redondo Beach v. City of Redondo Beach, 657\\nF.3d 936, 943–44 (9th Cir. 2011) (finding organizational\\nstanding where resources directed toward “assisting day\\nlaborers during their arrests and meeting with workers about\\nthe status of the [challenged] ordinance would have\\notherwise been expended toward [the advocacy group’s]\\ncore organizing activities”); Smith, 358 F.3d at 1105 (finding\\norganizational standing where complaint was dismissed\\nwithout leave to amend and plaintiff alleged it “divert[ed] its\\nscarce resources from other efforts” so it could “monitor the\\n[subject] violations and educate the public regarding the\\ndiscrimination”); Fair Hous. of Marin v. Combs, 285 F.3d\\n899, 905 (9th Cir. 2002) (finding organizational standing\\nwhere plaintiff alleged it had expended thousands of dollars\\nto “redress[] the impact” of defendant’s discrimination and,\\nas a result, was unable “to undertake other efforts to end\\nunlawful housing practices”); El Rescate Legal Servs., Inc.\\nv. Exec. Office of Immigration Review, 959 F.2d 742, 748\\n(9th Cir. 1991) (finding organizational standing where\\nplaintiffs “expend[ed] resources in representing clients they\\notherwise would spend in other ways”).\\n\\n Here, the only resource the Association claims it diverted\\nas a result of the New Policy is the time one of its two staff\\n\\f16 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\nattorneys took to handle a single intake call from an Army\\nparent. The staff attorney “explained the Army’s history of\\npolicies and practices, the [New] Policy, the famil[y’s] rights\\nunder federal law, and next steps in advocating for their\\nchild.” According to the Association, that call prevented the\\nstaff attorney from taking other calls concerning\\ndiscriminatory practices.\\n\\n Such evidence shows that, unlike the plaintiffs in Havens\\nRealty and our cases applying it, the Association did not\\ndivert any resources but was merely going about its business\\nas usual. Its staff attorneys dedicate a portion of their time\\nto taking calls, and one Army parent used that service. The\\nAssociation has not shown that, at the time the operative\\ncomplaint was filed and as a result of the New Policy, the\\nAssociation had altered or intended to alter its resource\\nallocation to allow its attorneys to take a higher volume of\\ncalls or separately address the New Policy. See Scott v.\\nPasadena Unified Sch. Dist., 306 F.3d 646, 655 (9th Cir.\\n2002) (holding that courts “must consider the facts as they\\nexisted at the time that the complaint was filed”). Thus, the\\ncourt did not err by finding the Association failed to establish\\norganizational standing. 2\\n\\n 2\\n Because the Association has failed to show any diversion of\\nresources under Havens Realty, the Association’s reliance on United\\nStates v. Students Challenging Regulatory Agency Procedures (SCRAP),\\n412 U.S. 669, 689 n.14 (1973), for the proposition that the staff\\nattorney’s inability to take other calls constitutes an “identifiable trifle”\\nsufficient to confer standing is misplaced. For the same reason, we need\\nnot and do not reach the Association and amici’s contentions that the\\ncourt erred by (1) imposing a quantitative threshold on resource\\ndiversion (i.e., requiring the Association show it redirected enough\\nresources to “perceptibly impair” its mission); and (2) holding that the\\nresources must be expended outside the organization’s usual scope of\\nwork.\\n\\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 17\\n\\n b. Representational Standing\\n\\n An organization has standing to sue on behalf of its\\nmembers where: “(a) its members would otherwise have\\nstanding to sue in their own right; (b) the interests it seeks to\\nprotect are germane to the organization’s purposes; and\\n(c) neither the claim asserted nor the relief requested\\nrequires the participation of individual members in the\\nlawsuit.” Ecological Rights Found. v. Pac. Lumber Co.,\\n230 F.3d 1141, 1147 (9th Cir. 2000) (quoting Hunt v. Wash.\\nState Apple Advert. Comm’n, 432 U.S. 333, 343 (1977)).\\nHere, the interests the Association seeks to protect are\\ngermane to its purpose and no claim asserted or relief\\nrequested requires the participation of the Association’s\\nmembers. Thus, we must determine whether any of the\\nAssociation’s members have standing to sue in their own\\nright.\\n\\n In that regard, the Association contends the New\\nPolicy’s accommodation procedures have deterred two of its\\nmembers, Bendlin and Brantly, from enrolling their eligible\\ndiabetic children in CYSS programs. 3 In support of its\\nposition, the Association relies on our case law under the\\nAmericans with Disabilities Act (“ADA”), wherein we have\\nfound standing where plaintiffs have “actual knowledge” of\\nan access barrier and are deterred from accessing the\\naccommodation as a result. See Civil Rights Educ. & Enf’t\\nCtr. v. Hosp. Props. Tr., 867 F.3d 1093, 1099 (9th Cir. 2017)\\n\\n\\n\\n 3\\n Defendants contend the Association was required to identify in its\\ncomplaint the members on which it relies and failed to do so. However,\\nthe Association asserted representational standing in the FAC and\\nprovided declarations from Bendlin and Brantly in response to\\ndefendants’ Rule 12(b)(1) motion to dismiss. That is sufficient.\\n\\f18 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\n(“It is the plaintiff’s ‘actual knowledge’ of a barrier, rather\\nthan the source of that knowledge, that is determinative.”).\\n\\n Defendants contend such ADA cases are inapplicable\\nbecause where, as here, a plaintiff seeks accommodation in\\na government program (rather than a public accommodation)\\nthe plaintiff must “provide the governmental entity an\\nopportunity to accommodate them through the entity’s\\nestablished procedures used to adjust the neutral policy in\\nquestion.” Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d\\n565, 578–79 (2d Cir. 2003); see also Oxford House-C v. City\\nof St. Louis, 77 F.3d 249, 253 (8th Cir. 1996) (holding the\\nplaintiff’s Fair Housing Act claim unripe where the plaintiff\\nrefused to apply for a zoning variance). However, the\\nplaintiffs in those cases refused to seek variances from the\\nchallenged practices through the defendant’s unchallenged\\naccommodation procedures. Tsombanidis, 352 F.3d at 579;\\nOxford House-C, 77 F.3d at 253. Here, the Association\\nseeks to bring a facial challenge to the accommodation\\nprocedures themselves. Thus, failure to first seek\\naccommodation thereunder does not render the\\nAssociation’s claims unripe.\\n\\n Defendants do not argue that our cases analyzing\\nstanding in the ADA context are otherwise inapplicable.\\nIndeed, “[t]here is no significant difference in analysis of the\\nrights and obligations created by the ADA and the\\nRehabilitation Act,” Zukle v. Regents of Univ. of Cal.,\\n166 F.3d 1041, 1045 n.11 (9th Cir. 1999), and any difference\\nin the statutes’ application or standards for relief on the\\nmerits is irrelevant to the question of what constitutes an\\nArticle III injury, cf. Kirola v. City & Cty. of San Francisco,\\n860 F.3d 1164, 1174 n.3 (9th Cir. 2017) (holding that,\\ndespite different applications of Title II (discrimination in\\npublic services) and Title III (discrimination in public\\n\\f AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY 19\\n\\naccommodations) of the ADA, “the answer to the\\nconstitutional question of what amounts to injury under\\nArticle III is the same”). Thus, if Bendlin or Brantly had\\nactual knowledge of the New Policy’s challenged provisions\\nat the time the operative complaint was filed and have been\\ndeterred from enrolling their otherwise eligible diabetic\\nchildren as a result, they, and thus the Association, have\\nstanding. See Scott, 306 F.3d at 655. 4\\n\\n The operative complaint was filed on July 21, 2017. In\\ntheir declarations, executed August 17, 2017, and August 18,\\n2017, respectively, Bendlin and Brantly aver that they\\n“recently learned” the Army revised its policy and that the\\nAssociation provided them with a copy of the revised policy\\non August 14. Both then state that, having “reviewed [the]\\nrevised policy,” they take issue with its provisions. Even\\nwhen viewed in the light most favorable to the Association,\\nsuch statements are insufficient to show either Bendlin or\\nBrantly had actual knowledge of the challenged provisions\\nat the time the operative complaint was filed. See Leite v.\\nCrane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) (“When the\\ndefendant raises a factual attack [under Rule 12(b)(1)], the\\nplaintiff must support her jurisdictional allegations with\\n‘competent proof,’ under the same evidentiary standard that\\ngoverns in the summary judgment context.” (citation\\n\\n 4\\n To the extent the Association contends Brantly suffered an injury\\nseparate and apart from being deterred because her child attended a\\nCYSS program from June 12 (the day the New Policy was adopted) to\\nJune 30, 2017, and was not afforded insulin accommodations during that\\nperiod, the Association’s reliance thereon is unavailing. As “past wrongs\\ndo not in themselves amount to [a] real and immediate threat of injury\\nnecessary to make out a case or controversy” for prospective relief, City\\nof Los Angeles v. Lyons, 461 U.S. 95, 103 (1983), Brantly’s standing\\nrests on whether she has been deterred.\\n\\f20 AMERICAN DIABETES ASS’N V. U.S. DEP’T OF ARMY\\n\\nomitted)). Thus, the court did not err by finding the\\nAssociation failed to establish representational standing. 5\\n\\n CONCLUSION\\n\\n For the reasons set forth above, any challenge to the Old\\nPolicy is moot, and the Association lacks standing to\\nchallenge the New Policy.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 5\\n In the facts section of its brief, the Association mentions a third\\nmember, Erwin, who avers: “I received a copy of CYSS’s revised policy\\nfrom the Association on August 14. I reviewed it, and I am still not sure\\nif it is worth the trouble in trying to get the accommodations again.”\\nSuch statements are similarly insufficient to show the declarant had\\nactual knowledge of the challenged provisions on July 21, 2017.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4469,"cells":{"id":{"kind":"number","value":4662527,"string":"4,662,527"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Alan Shelby"},"decision_date":{"kind":"string","value":"2019-09-19"},"docket_number":{"kind":"string","value":"18-35515"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Mary H. Murguia and Andrew D. Hurwitz, Circuit Judges, and Jennifer G. Zipps, * District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"HURWITZ, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\n UNITED STATES OF AMERICA, No. 18-35515\\n Plaintiff-Appellee,\\n D.C. Nos.\\n v. 3:16-cv-01268-JO\\n 3:94-cr-00380-JO-1\\n ALAN LAWRENCE SHELBY,\\n Defendant-Appellant. OPINION\\n\\n Appeal from the United States District Court\\n for the District of Oregon\\n Robert E. Jones, District Judge, Presiding\\n\\n Argued and Submitted June 5, 2019\\n Portland, Oregon\\n\\n Filed September 19, 2019\\n\\nBefore: Mary H. Murguia and Andrew D. Hurwitz, Circuit\\n Judges, and Jennifer G. Zipps, * District Judge.\\n\\n Opinion by Judge Hurwitz\\n\\n\\n\\n\\n *\\n The Honorable Jennifer G. Zipps, United States District Judge for\\nthe District of Arizona, sitting by designation.\\n\\f2 UNITED STATES V. SHELBY\\n\\n SUMMARY **\\n\\n\\n 28 U.S.C. § 2255\\n\\n The panel reversed the district court’s denial of a\\n28 U.S.C. § 2255 motion, and remanded, in a case in which\\nthe district court determined that the defendant’s prior\\nconviction for armed robbery under Oregon Revised Statutes\\n§ 164.415 qualified as a “violent felony” under the Armed\\nCareer Criminal Act (ACCA).\\n\\n The panel held that United States v. Strickland, 860 F.3d\\n1224 (9th Cir. 2017), which held that Oregon third-degree\\nrobbery is not a violent felony under the ACCA force clause\\nbecause it “doesn’t require physically violent force,” is not\\nclearly irreconcilable with Stokeling v. United States, 139\\nS. Ct. 544 (2019), which addressed a Florida robbery statute\\nthat requires resistance by the victim that is overcome by the\\nphysical force of the offender.\\n\\n The panel agreed with the district court that first-degree\\nrobbery in violation of Or. Rev. Stat. § 164.415(1)(a), which\\noccurs if the perpetrator is merely “armed with a deadly\\nweapon,” is not a categorically violent offense. But the\\npanel disagreed with the district court’s conclusion, under\\nthe modified categorical approach, that the defendant’s prior\\nconvictions were under Or. Rev. Stat. § 164.415(1)(b),\\nwhich requires the use or attempted use of a dangerous\\nweapon, and therefore were violent ACCA offenses. The\\npanel wrote that the Shepard documents do not establish that\\n\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f UNITED STATES V. SHELBY 3\\n\\nthe defendant was charged or convicted under\\n§ 164.415(1)(b), and therefore even assuming § 164.415(1)\\nis divisible, the district court erred in finding that the\\ndefendant had been convicted of armed robbery under\\nsubsection (b).\\n\\n\\n COUNSEL\\n\\nElizabeth G. Daily (argued), Assistant Federal Public\\nDefender; Stephen R. Sady, Chief Deputy Federal Public\\nDefender; Office of the Federal Public Defender, Portland,\\nOregon; for Defendant-Appellant.\\n\\nSuzanne B. Miles (argued) and Benjamin Tolkoff, Assistant\\nUnited States Attorneys; Kelly A. Zusman, Appellate Chief;\\nBilly J. Williams United States Attorney; United States\\nAttorney’s Office, Portland, Oregon; for Plaintiff-Appellee.\\n\\n\\n OPINION\\n\\nHURWITZ, Circuit Judge:\\n\\n The issue for decision is whether first-degree armed\\nrobbery in violation of Oregon Revised Statutes § 164.415 is\\na “violent” felony under the Armed Career Criminal Act\\n(“ACCA”), 18 U.S.C. § 924(e). As a matter of common\\nunderstanding, appellant Alan Shelby, who has been\\nconvicted of armed robbery three times in Oregon state\\ncourt, is the paradigm of an armed career criminal. But we\\nare mandated by the Supreme Court to analyze this case not\\nthrough common understanding, but rather by comparing the\\nelements of the state crime to the requirements of the federal\\nstatute. And, faithfully applying that approach, we conclude\\n\\f4 UNITED STATES V. SHELBY\\n\\nthat the Oregon convictions before us do not qualify as\\nviolent felonies under the ACCA.\\n\\n I.\\n\\n Shelby pleaded guilty in district court to one count of\\nescape in violation of 18 U.S.C. § 751(a), and one count of\\nunlawfully possessing a firearm after a felony conviction in\\nviolation 18 U.S.C. § 922(g). The ACCA mandates a 15-\\nyear minimum sentence for a person convicted under\\n§ 922(g) with “three previous convictions . . . for a violent\\nfelony or a serious drug offense, or both.” 18 U.S.C.\\n§ 924(e)(1). A violent felony is defined under the ACCA\\n“force clause” as one that “has as an element the use,\\nattempted use, or threatened use of physical force against the\\nperson of another.” 18 U.S.C. § 924(e)(2)(B)(i). The ACCA\\n“residual clause” also defines a violent felony as a crime that\\n“involves conduct that presents a serious potential risk of\\nphysical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). 1\\n\\n In seeking an ACCA enhancement to Shelby’s § 922(g)\\nsentence, the government offered proof of: (1) three prior\\nconvictions for Oregon first-degree robbery; (2) one prior\\nconviction for Oregon second-degree robbery; and (3) one\\nprior federal conviction for “Conspiracy to Manufacture,\\nPossess With Intent to Distribute and Distribute\\nMethamphetamine and Use Of a Firearm During a Drug\\nCrime.” The sentencing judge imposed the ACCA\\nenhancement; Shelby received a sentence of 180 months on\\nthe felon in possession count. The sentencing judge did not\\n\\n 1\\n The ACCA also contains an “enumerated clause,” defining a\\nviolent felony as a crime that “is burglary, arson, or extortion, [or]\\ninvolves use of explosives.” 18 U.S.C. § 924(e)(2)(B)(ii). That clause\\nis not at issue in this case.\\n\\f UNITED STATES V. SHELBY 5\\n\\nindicate which clause of the ACCA he relied upon, but\\nbecause ACCA requires three prior qualifying convictions,\\nthe sentence necessarily rests on the conclusion that Oregon\\nfirst-degree robbery is a violent felony.\\n\\n In Johnson v. United States, 135 S. Ct. 2551, 2563\\n(2015), the Supreme Court held the ACCA residual clause\\nto be unconstitutionally vague, and in Welch v. United\\nStates, 136 S. Ct. 1257, 1268 (2016), it applied the rule in\\nJohnson retroactively. After Welch was decided, Shelby\\ntimely filed a 28 U.S.C. § 2255 motion, challenging the\\nACCA enhancement because the residual clause no longer\\napplied and asserting that the three first-degree robbery\\nconvictions did not qualify as violent felonies under the\\nforce clause.\\n\\n The district court denied the motion. It started from the\\npremise that armed robbery under Or. Rev. Stat.\\n§ 164.415(1)(a) is not categorically an ACCA violent\\nfelony, because the mere possession of a concealed weapon,\\nnot its use, can establish being “armed” under the state law.\\nBut, the court found the Oregon first-degree robbery statute\\ndivisible, and held that the “indictments show that Shelby\\nwas convicted under subsection (b) of Or. Rev. Stat.\\n§ 164.415 rather than subsection (a).” Because subsection\\n(b) proscribes robberies in which the defendant “[u]ses or\\nattempts to use a dangerous weapon,” the court held that\\nShelby’s prior convictions were ACCA violent felonies.\\n\\n II.\\n\\n A.\\n\\n A felony is “violent” under the ACCA force clause if it\\n“has as an element the use, attempted use, or threatened use\\nof physical force against the person of another.” 18 U.S.C.\\n\\f6 UNITED STATES V. SHELBY\\n\\n§ 924(e)(2)(B)(i). The “physical force” must be “violent\\nforce,” or “force capable of causing physical pain or injury\\nto another person.” Johnson v. United States, 559 U.S. 133,\\n140 (2010). The force clause “encompasses robbery\\noffenses that require the criminal to overcome the victim’s\\nresistance.” Stokeling v United States, 139 S. Ct. 544, 550\\n(2019).\\n\\n Our starting point in determining whether Shelby’s\\nconvictions are violent felonies is the base Oregon robbery\\nstatute, which defines third-degree robbery as follows:\\n\\n A person commits the crime of robbery in the\\n third degree if in the course of committing or\\n attempting to commit theft or unauthorized\\n use of a vehicle as defined in ORS 164.135\\n the person uses or threatens the immediate\\n use of physical force upon another person\\n with the intent of:\\n\\n (a) Preventing or overcoming resistance to\\n the taking of the property or to retention\\n thereof immediately after the taking; or\\n\\n (b) Compelling the owner of such property or\\n another person to deliver the property or\\n to engage in other conduct which might\\n aid in the commission of the theft or\\n unauthorized use of a vehicle.\\n\\nOr. Rev. Stat. § 164.395(1). First-degree robbery occurs “if\\nthe person violates ORS 164.395 and the person: (a) Is\\narmed with a deadly weapon; (b) Uses or attempts to use a\\ndangerous weapon; or (c) Causes or attempts to cause\\nserious physical injury to any person.” Or. Rev. Stat.\\n§ 164.415(1).\\n\\f UNITED STATES V. SHELBY 7\\n\\n We held in United States v. Strickland that Oregon third-\\ndegree robbery is not a violent felony under the ACCA force\\nclause because it “doesn’t require physically violent force.”\\n860 F.3d 1224, 1227 (9th Cir. 2017). The government first\\nargues that Strickland is no longer good law after Stokeling.\\n\\n A three-judge panel can only decline to apply prior\\nCircuit precedent “clearly irreconcilable” with a subsequent\\nSupreme Court decision. Close v. Sotheby’s, Inc., 894 F.3d\\n1061, 1072–73 (9th Cir. 2018). We recognized in Ward v.\\nUnited States that “[o]ur prior distinction between\\n‘substantial’ and ‘minimal’ force in the ACCA robbery\\ncontext” does not survive Stokeling. No. 17-35563, slip op.\\nat 9 (9th Cir. Sept. 3, 2019). But, in the same case, we noted\\nthat “Stokeling made clear that force involved in snatchings,\\nwhere there is no resistance, is not sufficient to fall under the\\nACCA’s force clause.” Id. at 10 n.4. And, we stressed that\\n\\n [i]n several recent memorandum\\n dispositions, we have also recognized\\n instances of force that did not fall within “the\\n scope of the elements clause as defined in\\n Stokeling.” United States v. Lawrence,\\n 758 F. App’x 624, 625 (9th Cir. 2019); see\\n also Torres v. Whitaker, 752 F. App’x 512,\\n 513 & n.1 (9th Cir. 2019). Thus, to whatever\\n extent the state statutes discussed in Molinar\\n and other ACCA robbery cases criminalize\\n force more broadly than in Stokeling, those\\n cases have not been overruled. See Lawrence,\\n 758 F. App’x at 625 (reaffirming United\\n States v. Strickland, 860 F.3d 1224 (9th Cir.\\n 2017)).\\n\\nId.\\n\\f8 UNITED STATES V. SHELBY\\n\\n Applying this analysis, we conclude that Strickland and\\nStokeling are not clearly irreconcilable. Stokeling addressed\\na Florida statute defining robbery as “the taking of money or\\nother property . . . from the person or custody of another, . . .\\nwhen in the course of the taking there is the use of force,\\nviolence, assault, or putting in fear.” 139 S. Ct. at 549\\n(alterations in original) (quoting Fla. Stat. § 812.13(1)).\\nBecause “[t]he Florida Supreme Court has made clear that\\nthe statute required ‘resistance by the victim that is\\novercome by the physical force of the offender,’” the\\nSupreme Court held that a Florida robbery conviction\\nqualified as a violent felony under the ACCA force clause.\\nId. at 554–55 (quoting Robinson v. State, 692 So. 2d 883,\\n886 (Fla. 1997)). But, Stokeling emphasized that the state\\nstatute did not apply to “a defendant who merely snatches\\nmoney from the victim’s hand” without grabbing the\\nvictim’s fingers, or one “who steals a gold chain . . . simply\\nbecause the victim feels his fingers on the back of her neck.”\\nId. at 555 (cleaned up).\\n\\n In contrast to the Florida crime, Oregon third-degree\\nrobbery does not even require that a victim feel “much of\\nanything.” Strickland, 860 F.3d at 1227 (quoting State v.\\nJohnson, 168 P.3d 312, 313 (Or. Ct. App. 2007)). Under\\nOregon law, “a perpetrator could ‘prevent’ a victim’s\\nresistance by acting so swiftly that the victim does not have\\ntime to resist, i.e., by taking the victim’s property so quickly\\nthat resistance is futile.” Johnson, 168 P.3d at 314; see\\nBarbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir. 2019) (“[I]t\\nis clear that a conviction under section 164.395 requires only\\nminimal physical force.”). We therefore conclude that\\nStrickland survives Stokeling.\\n\\f UNITED STATES V. SHELBY 9\\n\\n B.\\n\\n The next question is whether Oregon first-degree\\nrobbery is categorically violent under the ACCA force\\nclause. The district court held that armed robbery in\\nviolation of Or. Rev. Stat. § 164.415(1)(a) is not a\\ncategorically violent offense. We agree. First-degree\\nrobbery occurs under § 164.415(1)(a) if the perpetrator is\\nmerely “armed with a deadly weapon.” “The person\\ncommitting the crime need not actually use the deadly\\nweapon, much less make any representations about it.” State\\nv. Zimmerman, 12 P.3d 996, 998 (Or. Ct. App. 2000).\\n“There is a material difference between the presence of a\\nweapon, which produces a risk of violent force, and the\\nactual or threatened use of such force. Only the latter falls\\nwithin ACCA’s force clause.” United States v. Parnell,\\n818 F.3d 974, 980 (9th Cir. 2016) (emphasis in original).\\n\\n The government argues that “no Oregon case has held\\nthat a first-degree robbery conviction could be sustained\\nunder Or. Rev. Stat. § 164.415(1)(a) based solely on a\\ndefendant’s purely covert firearm possession.” But it does\\nnot contest that the Oregon statute expressly covers such\\nconduct. “[I]f a state statute explicitly defines a crime more\\nbroadly than the generic definition, no legal imagination is\\nrequired to hold that a realistic probability exists that the\\nstate will apply its statute to conduct that falls outside the\\ngeneric definition of the crime.” United States v. Brown,\\n879 F.3d 1043, 1050 (9th Cir. 2018) (quoting Chavez-Solis\\nv. Lynch, 803 F.3d 1004, 1009–10 (9th Cir. 2015)). 2\\n\\n\\n 2\\n Our conclusion is consistent with this Court’s interpretations of\\nsimilar state armed robbery statutes. See United States v. Molinar,\\n881 F.3d 1064, 1069–70 (9th Cir. 2017) (holding that Arizona’s armed\\n\\f10 UNITED STATES V. SHELBY\\n\\n C.\\n\\n Although correctly concluding that armed robbery under\\nOr. Rev. Stat. § 164.415(1)(a) did not qualify as an ACCA\\nviolent offense under the force clause, the district court\\nfound that § 164.415 was divisible under the rule of\\nDescamps v. United States, 570 U.S. 254, 261–64 (2013). It\\nthen concluded that Shelby’s prior convictions were under\\nOr. Rev. Stat. § 164.415(1)(b), which requires the use or\\nattempted use of a dangerous weapon, and therefore were\\nviolent ACCA offenses.\\n\\n If a statute is divisible, the modified categorical approach\\nallows looking “to a limited class of documents (for\\nexample, the indictment, jury instructions, or plea agreement\\nand colloquy) to determine what crime, with what elements,\\na defendant was convicted of.” Mathis v. United States,\\n136 S. Ct. 2243, 2249 (2016). But, when the so-called\\n“Shepard documents,” see Shepard v. United States, 544\\nU.S. 13, 16 (2005), do not make clear what section of a\\ndivisible statute the defendant was convicted under, a prior\\nconviction cannot constitute a disqualifying offense under\\nthe modified categorical approach. See Marinelarena v.\\nBarr, No. 14-72003, 2019 WL 3227458, at *6 (9th Cir. July\\n\\n\\nrobbery statute does not qualify as a “crime of violence” in part because\\nit “does not require that the robber actually use or even threaten to use a\\nweapon”); United States v. Geozos, 870 F.3d 890, 899–901 (9th Cir.\\n2017) (holding that Florida armed robbery, which requires a defendant\\nto “carr[y] a firearm or other deadly weapon” in “the course of\\ncommitting the robbery,” did not qualify as a violent felony in part\\nbecause “it would have been possible for someone to be convicted of\\nviolating the statute for carrying a firearm during a robbery even if that\\nfirearm was not displayed and the victim of the robbery was unaware of\\nits presence”).\\n\\f UNITED STATES V. SHELBY 11\\n\\n18, 2019) (“[A]mbiguity in the record as to a petitioner’s\\noffense of conviction means that the petitioner has not been\\nconvicted of an offense disqualifying her from relief.”); see\\nalso United States v. Arriaga-Pinon, 852 F.3d 1195, 1199–\\n1200 (9th Cir. 2017).\\n\\n The indictments for Shelby’s Oregon first-degree\\nrobbery convictions do not specify whether he was accused\\nof violating subsection (a) or subsection (b) of § 164.415(1),\\nor both. Each alleges that Shelby was “armed with . . . a\\ndeadly weapon,” but none alleges that he used the weapon\\nduring the charged robbery. 3 And, the judgments of\\n 3\\n The indictment in Lane County Case No. 10-83-06212 alleged:\\n\\n The defendant on or about the 6th day of July, 1982,\\n in the county aforesaid . . . did unlawfully and\\n knowingly use and threaten the immediate use of\\n physical force upon [the victim], and was armed with\\n a handgun, a deadly weapon, while in the course of\\n committing and attempting to commit theft of United\\n States money and other property with the intent of\\n preventing or overcoming resistance to the defendants\\n taking and retention immediately after the taking of\\n the property[.]\\n\\n The indictment in Lane County Case No. 10-83-07615 alleged:\\n\\n The defendant on or about the 30th day of May, 1982,\\n in the county aforesaid . . . did unlawfully and\\n knowingly use and threaten the immediate use of\\n physical force upon [the victim], and was armed with\\n a pistol, a deadly weapon, while in the course of\\n committing and attempting to commit theft of money\\n and other property, with the intent of preventing and\\n overcoming resistance to the defendant’s taking and\\n retention immediately after the taking of the\\n property[.]\\n\\f12 UNITED STATES V. SHELBY\\n\\nconviction simply state that Shelby pleaded guilty to the\\nfirst-degree robbery offense charged, without identifying a\\nsubsection of the Oregon statute. The Shepard documents\\ntherefore simply do not establish that Shelby was charged or\\nconvicted under § 164.415(1)(b). And, even if the Shepard\\ndocuments could be read as alleging crimes under both\\nsubsections (a) and (b), the elements of the offense of\\nconviction remain unclear when the defendant is convicted\\nunder a conjunctively phrased charging document. United\\nStates v. Lee, 821 F.3d 1124, 1129 (9th Cir. 2016).\\nTherefore, even assuming that § 164.415(1) is divisible, the\\ndistrict court erred in finding that Shelby had been convicted\\nof armed robbery under subsection (b).\\n\\n III.\\n\\n For the reasons above, we REVERSE the district court’s\\ndenial of Shelby’s § 2255 motion, and REMAND with\\n\\n\\n\\n\\n The indictment in Lane County Case No. 10-83-07616 alleged:\\n\\n The defendant on or about the 24th day of March,\\n 1981, in the county aforesaid . . . did unlawfully and\\n knowingly use and threaten the immediate use of\\n physical force upon [the victim], and was armed with\\n a rifle and a shotgun, deadly weapons, while in the\\n course of committing and attempting to commit theft\\n of United States money and other property with the\\n intent of preventing and overcoming resistance to the\\n defendants taking and retention immediately after the\\n taking of the property[.]\\n\\f UNITED STATES V. SHELBY 13\\n\\ninstructions to grant the § 2255 motion and for resentencing\\non an open record. 4\\n\\n\\n\\n\\n 4\\n The government argues for the first time on appeal that because\\nShelby’s Oregon robbery sentences were enhanced for the “use or\\nthreatened use of a firearm” by “an additional mandatory minimum term\\nof five (5) years pursuant to ORS 161.610,” the judgments of conviction\\nestablish that he was convicted under Or. Rev. Stat. § 164.415(1)(b). We\\ndecline to address this argument in the first instance. See In re Mercury\\nInteractive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010) (“[A]n\\nissue will generally be deemed waived on appeal if the argument was not\\nraised sufficiently for the trial court to rule on it.” (internal quotation\\nmarks and citation omitted)). Because we remand for resentencing on\\nan open record, the government may present this argument to the district\\ncourt.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4439780/\", \"author_raw\": \"HURWITZ, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"MARY H MURGUIA"},"judge2":{"kind":"string","value":"ANDREW D HURWITZ"},"judge3":{"kind":"string","value":"JENNIFER G ZIPPS"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4662527/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Alan Shelby\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF AMERICA, No. 18-35515\n Plaintiff-Appellee,\n D.C. Nos.\n v. 3:16-cv-01268-JO\n 3:94-cr-00380-JO-1\n ALAN LAWRENCE SHELBY,\n Defendant-Appellant. OPINION\n\n Appeal from the United States District Court\n for the District of Oregon\n Robert E. Jones, District Judge, Presiding\n\n Argued and Submitted June 5, 2019\n Portland, Oregon\n\n Filed September 19, 2019\n\nBefore: Mary H. Murguia and Andrew D. Hurwitz, Circuit\n Judges, and Jennifer G. Zipps, * District Judge.\n\n Opinion by Judge Hurwitz\n\n\n\n\n *\n The Honorable Jennifer G. Zipps, United States District Judge for\nthe District of Arizona, sitting by designation.\n\f2 UNITED STATES V. SHELBY\n\n SUMMARY **\n\n\n 28 U.S.C. § 2255\n\n The panel reversed the district court’s denial of a\n28 U.S.C. § 2255 motion, and remanded, in a case in which\nthe district court determined that the defendant’s prior\nconviction for armed robbery under Oregon Revised Statutes\n§ 164.415 qualified as a “violent felony” under the Armed\nCareer Criminal Act (ACCA).\n\n The panel held that United States v. Strickland, 860 F.3d\n1224 (9th Cir. 2017), which held that Oregon third-degree\nrobbery is not a violent felony under the ACCA force clause\nbecause it “doesn’t require physically violent force,” is not\nclearly irreconcilable with Stokeling v. United States, 139\nS. Ct. 544 (2019), which addressed a Florida robbery statute\nthat requires resistance by the victim that is overcome by the\nphysical force of the offender.\n\n The panel agreed with the district court that first-degree\nrobbery in violation of Or. Rev. Stat. § 164.415(1)(a), which\noccurs if the perpetrator is merely “armed with a deadly\nweapon,” is not a categorically violent offense. But the\npanel disagreed with the district court’s conclusion, under\nthe modified categorical approach, that the defendant’s prior\nconvictions were under Or. Rev. Stat. § 164.415(1)(b),\nwhich requires the use or attempted use of a dangerous\nweapon, and therefore were violent ACCA offenses. The\npanel wrote that the Shepard documents do not establish that\n\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. SHELBY 3\n\nthe defendant was charged or convicted under\n§ 164.415(1)(b), and therefore even assuming § 164.415(1)\nis divisible, the district court erred in finding that the\ndefendant had been convicted of armed robbery under\nsubsection (b).\n\n\n COUNSEL\n\nElizabeth G. Daily (argued), Assistant Federal Public\nDefender; Stephen R. Sady, Chief Deputy Federal Public\nDefender; Office of the Federal Public Defender, Portland,\nOregon; for Defendant-Appellant.\n\nSuzanne B. Miles (argued) and Benjamin Tolkoff, Assistant\nUnited States Attorneys; Kelly A. Zusman, Appellate Chief;\nBilly J. Williams United States Attorney; United States\nAttorney’s Office, Portland, Oregon; for Plaintiff-Appellee.\n\n\n OPINION\n\nHURWITZ, Circuit Judge:\n\n The issue for decision is whether first-degree armed\nrobbery in violation of Oregon Revised Statutes § 164.415 is\na “violent” felony under the Armed Career Criminal Act\n(“ACCA”), 18 U.S.C. § 924(e). As a matter of common\nunderstanding, appellant Alan Shelby, who has been\nconvicted of armed robbery three times in Oregon state\ncourt, is the paradigm of an armed career criminal. But we\nare mandated by the Supreme Court to analyze this case not\nthrough common understanding, but rather by comparing the\nelements of the state crime to the requirements of the federal\nstatute. And, faithfully applying that approach, we conclude\n\f4 UNITED STATES V. SHELBY\n\nthat the Oregon convictions before us do not qualify as\nviolent felonies under the ACCA.\n\n I.\n\n Shelby pleaded guilty in district court to one count of\nescape in violation of 18 U.S.C. § 751(a), and one count of\nunlawfully possessing a firearm after a felony conviction in\nviolation 18 U.S.C. § 922(g). The ACCA mandates a 15-\nyear minimum sentence for a person convicted under\n§ 922(g) with “three previous convictions . . . for a violent\nfelony or a serious drug offense, or both.” 18 U.S.C.\n§ 924(e)(1). A violent felony is defined under the ACCA\n“force clause” as one that “has as an element the use,\nattempted use, or threatened use of physical force against the\nperson of another.” 18 U.S.C. § 924(e)(2)(B)(i). The ACCA\n“residual clause” also defines a violent felony as a crime that\n“involves conduct that presents a serious potential risk of\nphysical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). 1\n\n In seeking an ACCA enhancement to Shelby’s § 922(g)\nsentence, the government offered proof of: (1) three prior\nconvictions for Oregon first-degree robbery; (2) one prior\nconviction for Oregon second-degree robbery; and (3) one\nprior federal conviction for “Conspiracy to Manufacture,\nPossess With Intent to Distribute and Distribute\nMethamphetamine and Use Of a Firearm During a Drug\nCrime.” The sentencing judge imposed the ACCA\nenhancement; Shelby received a sentence of 180 months on\nthe felon in possession count. The sentencing judge did not\n\n 1\n The ACCA also contains an “enumerated clause,” defining a\nviolent felony as a crime that “is burglary, arson, or extortion, [or]\ninvolves use of explosives.” 18 U.S.C. § 924(e)(2)(B)(ii). That clause\nis not at issue in this case.\n\f UNITED STATES V. SHELBY 5\n\nindicate which clause of the ACCA he relied upon, but\nbecause ACCA requires three prior qualifying convictions,\nthe sentence necessarily rests on the conclusion that Oregon\nfirst-degree robbery is a violent felony.\n\n In Johnson v. United States, 135 S. Ct. 2551, 2563\n(2015), the Supreme Court held the ACCA residual clause\nto be unconstitutionally vague, and in Welch v. United\nStates, 136 S. Ct. 1257, 1268 (2016), it applied the rule in\nJohnson retroactively. After Welch was decided, Shelby\ntimely filed a 28 U.S.C. § 2255 motion, challenging the\nACCA enhancement because the residual clause no longer\napplied and asserting that the three first-degree robbery\nconvictions did not qualify as violent felonies under the\nforce clause.\n\n The district court denied the motion. It started from the\npremise that armed robbery under Or. Rev. Stat.\n§ 164.415(1)(a) is not categorically an ACCA violent\nfelony, because the mere possession of a concealed weapon,\nnot its use, can establish being “armed” under the state law.\nBut, the court found the Oregon first-degree robbery statute\ndivisible, and held that the “indictments show that Shelby\nwas convicted under subsection (b) of Or. Rev. Stat.\n§ 164.415 rather than subsection (a).” Because subsection\n(b) proscribes robberies in which the defendant “[u]ses or\nattempts to use a dangerous weapon,” the court held that\nShelby’s prior convictions were ACCA violent felonies.\n\n II.\n\n A.\n\n A felony is “violent” under the ACCA force clause if it\n“has as an element the use, attempted use, or threatened use\nof physical force against the person of another.” 18 U.S.C.\n\f6 UNITED STATES V. SHELBY\n\n§ 924(e)(2)(B)(i). The “physical force” must be “violent\nforce,” or “force capable of causing physical pain or injury\nto another person.” Johnson v. United States, 559 U.S. 133,\n140 (2010). The force clause “encompasses robbery\noffenses that require the criminal to overcome the victim’s\nresistance.” Stokeling v United States, 139 S. Ct. 544, 550\n(2019).\n\n Our starting point in determining whether Shelby’s\nconvictions are violent felonies is the base Oregon robbery\nstatute, which defines third-degree robbery as follows:\n\n A person commits the crime of robbery in the\n third degree if in the course of committing or\n attempting to commit theft or unauthorized\n use of a vehicle as defined in ORS 164.135\n the person uses or threatens the immediate\n use of physical force upon another person\n with the intent of:\n\n (a) Preventing or overcoming resistance to\n the taking of the property or to retention\n thereof immediately after the taking; or\n\n (b) Compelling the owner of such property or\n another person to deliver the property or\n to engage in other conduct which might\n aid in the commission of the theft or\n unauthorized use of a vehicle.\n\nOr. Rev. Stat. § 164.395(1). First-degree robbery occurs “if\nthe person violates ORS 164.395 and the person: (a) Is\narmed with a deadly weapon; (b) Uses or attempts to use a\ndangerous weapon; or (c) Causes or attempts to cause\nserious physical injury to any person.” Or. Rev. Stat.\n§ 164.415(1).\n\f UNITED STATES V. SHELBY 7\n\n We held in United States v. Strickland that Oregon third-\ndegree robbery is not a violent felony under the ACCA force\nclause because it “doesn’t require physically violent force.”\n860 F.3d 1224, 1227 (9th Cir. 2017). The government first\nargues that Strickland is no longer good law after Stokeling.\n\n A three-judge panel can only decline to apply prior\nCircuit precedent “clearly irreconcilable” with a subsequent\nSupreme Court decision. Close v. Sotheby’s, Inc., 894 F.3d\n1061, 1072–73 (9th Cir. 2018). We recognized in Ward v.\nUnited States that “[o]ur prior distinction between\n‘substantial’ and ‘minimal’ force in the ACCA robbery\ncontext” does not survive Stokeling. No. 17-35563, slip op.\nat 9 (9th Cir. Sept. 3, 2019). But, in the same case, we noted\nthat “Stokeling made clear that force involved in snatchings,\nwhere there is no resistance, is not sufficient to fall under the\nACCA’s force clause.” Id. at 10 n.4. And, we stressed that\n\n [i]n several recent memorandum\n dispositions, we have also recognized\n instances of force that did not fall within “the\n scope of the elements clause as defined in\n Stokeling.” United States v. Lawrence,\n 758 F. App’x 624, 625 (9th Cir. 2019); see\n also Torres v. Whitaker, 752 F. App’x 512,\n 513 & n.1 (9th Cir. 2019). Thus, to whatever\n extent the state statutes discussed in Molinar\n and other ACCA robbery cases criminalize\n force more broadly than in Stokeling, those\n cases have not been overruled. See Lawrence,\n 758 F. App’x at 625 (reaffirming United\n States v. Strickland, 860 F.3d 1224 (9th Cir.\n 2017)).\n\nId.\n\f8 UNITED STATES V. SHELBY\n\n Applying this analysis, we conclude that Strickland and\nStokeling are not clearly irreconcilable. Stokeling addressed\na Florida statute defining robbery as “the taking of money or\nother property . . . from the person or custody of another, . . .\nwhen in the course of the taking there is the use of force,\nviolence, assault, or putting in fear.” 139 S. Ct. at 549\n(alterations in original) (quoting Fla. Stat. § 812.13(1)).\nBecause “[t]he Florida Supreme Court has made clear that\nthe statute required ‘resistance by the victim that is\novercome by the physical force of the offender,’” the\nSupreme Court held that a Florida robbery conviction\nqualified as a violent felony under the ACCA force clause.\nId. at 554–55 (quoting Robinson v. State, 692 So. 2d 883,\n886 (Fla. 1997)). But, Stokeling emphasized that the state\nstatute did not apply to “a defendant who merely snatches\nmoney from the victim’s hand” without grabbing the\nvictim’s fingers, or one “who steals a gold chain . . . simply\nbecause the victim feels his fingers on the back of her neck.”\nId. at 555 (cleaned up).\n\n In contrast to the Florida crime, Oregon third-degree\nrobbery does not even require that a victim feel “much of\nanything.” Strickland, 860 F.3d at 1227 (quoting State v.\nJohnson, 168 P.3d 312, 313 (Or. Ct. App. 2007)). Under\nOregon law, “a perpetrator could ‘prevent’ a victim’s\nresistance by acting so swiftly that the victim does not have\ntime to resist, i.e., by taking the victim’s property so quickly\nthat resistance is futile.” Johnson, 168 P.3d at 314; see\nBarbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir. 2019) (“[I]t\nis clear that a conviction under section 164.395 requires only\nminimal physical force.”). We therefore conclude that\nStrickland survives Stokeling.\n\f UNITED STATES V. SHELBY 9\n\n B.\n\n The next question is whether Oregon first-degree\nrobbery is categorically violent under the ACCA force\nclause. The district court held that armed robbery in\nviolation of Or. Rev. Stat. § 164.415(1)(a) is not a\ncategorically violent offense. We agree. First-degree\nrobbery occurs under § 164.415(1)(a) if the perpetrator is\nmerely “armed with a deadly weapon.” “The person\ncommitting the crime need not actually use the deadly\nweapon, much less make any representations about it.” State\nv. Zimmerman, 12 P.3d 996, 998 (Or. Ct. App. 2000).\n“There is a material difference between the presence of a\nweapon, which produces a risk of violent force, and the\nactual or threatened use of such force. Only the latter falls\nwithin ACCA’s force clause.” United States v. Parnell,\n818 F.3d 974, 980 (9th Cir. 2016) (emphasis in original).\n\n The government argues that “no Oregon case has held\nthat a first-degree robbery conviction could be sustained\nunder Or. Rev. Stat. § 164.415(1)(a) based solely on a\ndefendant’s purely covert firearm possession.” But it does\nnot contest that the Oregon statute expressly covers such\nconduct. “[I]f a state statute explicitly defines a crime more\nbroadly than the generic definition, no legal imagination is\nrequired to hold that a realistic probability exists that the\nstate will apply its statute to conduct that falls outside the\ngeneric definition of the crime.” United States v. Brown,\n879 F.3d 1043, 1050 (9th Cir. 2018) (quoting Chavez-Solis\nv. Lynch, 803 F.3d 1004, 1009–10 (9th Cir. 2015)). 2\n\n\n 2\n Our conclusion is consistent with this Court’s interpretations of\nsimilar state armed robbery statutes. See United States v. Molinar,\n881 F.3d 1064, 1069–70 (9th Cir. 2017) (holding that Arizona’s armed\n\f10 UNITED STATES V. SHELBY\n\n C.\n\n Although correctly concluding that armed robbery under\nOr. Rev. Stat. § 164.415(1)(a) did not qualify as an ACCA\nviolent offense under the force clause, the district court\nfound that § 164.415 was divisible under the rule of\nDescamps v. United States, 570 U.S. 254, 261–64 (2013). It\nthen concluded that Shelby’s prior convictions were under\nOr. Rev. Stat. § 164.415(1)(b), which requires the use or\nattempted use of a dangerous weapon, and therefore were\nviolent ACCA offenses.\n\n If a statute is divisible, the modified categorical approach\nallows looking “to a limited class of documents (for\nexample, the indictment, jury instructions, or plea agreement\nand colloquy) to determine what crime, with what elements,\na defendant was convicted of.” Mathis v. United States,\n136 S. Ct. 2243, 2249 (2016). But, when the so-called\n“Shepard documents,” see Shepard v. United States, 544\nU.S. 13, 16 (2005), do not make clear what section of a\ndivisible statute the defendant was convicted under, a prior\nconviction cannot constitute a disqualifying offense under\nthe modified categorical approach. See Marinelarena v.\nBarr, No. 14-72003, 2019 WL 3227458, at *6 (9th Cir. July\n\n\nrobbery statute does not qualify as a “crime of violence” in part because\nit “does not require that the robber actually use or even threaten to use a\nweapon”); United States v. Geozos, 870 F.3d 890, 899–901 (9th Cir.\n2017) (holding that Florida armed robbery, which requires a defendant\nto “carr[y] a firearm or other deadly weapon” in “the course of\ncommitting the robbery,” did not qualify as a violent felony in part\nbecause “it would have been possible for someone to be convicted of\nviolating the statute for carrying a firearm during a robbery even if that\nfirearm was not displayed and the victim of the robbery was unaware of\nits presence”).\n\f UNITED STATES V. SHELBY 11\n\n18, 2019) (“[A]mbiguity in the record as to a petitioner’s\noffense of conviction means that the petitioner has not been\nconvicted of an offense disqualifying her from relief.”); see\nalso United States v. Arriaga-Pinon, 852 F.3d 1195, 1199–\n1200 (9th Cir. 2017).\n\n The indictments for Shelby’s Oregon first-degree\nrobbery convictions do not specify whether he was accused\nof violating subsection (a) or subsection (b) of § 164.415(1),\nor both. Each alleges that Shelby was “armed with . . . a\ndeadly weapon,” but none alleges that he used the weapon\nduring the charged robbery. 3 And, the judgments of\n 3\n The indictment in Lane County Case No. 10-83-06212 alleged:\n\n The defendant on or about the 6th day of July, 1982,\n in the county aforesaid . . . did unlawfully and\n knowingly use and threaten the immediate use of\n physical force upon [the victim], and was armed with\n a handgun, a deadly weapon, while in the course of\n committing and attempting to commit theft of United\n States money and other property with the intent of\n preventing or overcoming resistance to the defendants\n taking and retention immediately after the taking of\n the property[.]\n\n The indictment in Lane County Case No. 10-83-07615 alleged:\n\n The defendant on or about the 30th day of May, 1982,\n in the county aforesaid . . . did unlawfully and\n knowingly use and threaten the immediate use of\n physical force upon [the victim], and was armed with\n a pistol, a deadly weapon, while in the course of\n committing and attempting to commit theft of money\n and other property, with the intent of preventing and\n overcoming resistance to the defendant’s taking and\n retention immediately after the taking of the\n property[.]\n\f12 UNITED STATES V. SHELBY\n\nconviction simply state that Shelby pleaded guilty to the\nfirst-degree robbery offense charged, without identifying a\nsubsection of the Oregon statute. The Shepard documents\ntherefore simply do not establish that Shelby was charged or\nconvicted under § 164.415(1)(b). And, even if the Shepard\ndocuments could be read as alleging crimes under both\nsubsections (a) and (b), the elements of the offense of\nconviction remain unclear when the defendant is convicted\nunder a conjunctively phrased charging document. United\nStates v. Lee, 821 F.3d 1124, 1129 (9th Cir. 2016).\nTherefore, even assuming that § 164.415(1) is divisible, the\ndistrict court erred in finding that Shelby had been convicted\nof armed robbery under subsection (b).\n\n III.\n\n For the reasons above, we REVERSE the district court’s\ndenial of Shelby’s § 2255 motion, and REMAND with\n\n\n\n\n The indictment in Lane County Case No. 10-83-07616 alleged:\n\n The defendant on or about the 24th day of March,\n 1981, in the county aforesaid . . . did unlawfully and\n knowingly use and threaten the immediate use of\n physical force upon [the victim], and was armed with\n a rifle and a shotgun, deadly weapons, while in the\n course of committing and attempting to commit theft\n of United States money and other property with the\n intent of preventing and overcoming resistance to the\n defendants taking and retention immediately after the\n taking of the property[.]\n\f UNITED STATES V. SHELBY 13\n\ninstructions to grant the § 2255 motion and for resentencing\non an open record. 4\n\n\n\n\n 4\n The government argues for the first time on appeal that because\nShelby’s Oregon robbery sentences were enhanced for the “use or\nthreatened use of a firearm” by “an additional mandatory minimum term\nof five (5) years pursuant to ORS 161.610,” the judgments of conviction\nestablish that he was convicted under Or. Rev. Stat. § 164.415(1)(b). We\ndecline to address this argument in the first instance. See In re Mercury\nInteractive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010) (“[A]n\nissue will generally be deemed waived on appeal if the argument was not\nraised sufficiently for the trial court to rule on it.” (internal quotation\nmarks and citation omitted)). Because we remand for resentencing on\nan open record, the government may present this argument to the district\ncourt.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Alan Shelby\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\n UNITED STATES OF AMERICA, No. 18-35515\\n Plaintiff-Appellee,\\n D.C. Nos.\\n v. 3:16-cv-01268-JO\\n 3:94-cr-00380-JO-1\\n ALAN LAWRENCE SHELBY,\\n Defendant-Appellant. OPINION\\n\\n Appeal from the United States District Court\\n for the District of Oregon\\n Robert E. Jones, District Judge, Presiding\\n\\n Argued and Submitted June 5, 2019\\n Portland, Oregon\\n\\n Filed September 19, 2019\\n\\nBefore: Mary H. Murguia and Andrew D. Hurwitz, Circuit\\n Judges, and Jennifer G. Zipps, * District Judge.\\n\\n Opinion by Judge Hurwitz\\n\\n\\n\\n\\n *\\n The Honorable Jennifer G. Zipps, United States District Judge for\\nthe District of Arizona, sitting by designation.\\n\\f2 UNITED STATES V. SHELBY\\n\\n SUMMARY **\\n\\n\\n 28 U.S.C. § 2255\\n\\n The panel reversed the district court’s denial of a\\n28 U.S.C. § 2255 motion, and remanded, in a case in which\\nthe district court determined that the defendant’s prior\\nconviction for armed robbery under Oregon Revised Statutes\\n§ 164.415 qualified as a “violent felony” under the Armed\\nCareer Criminal Act (ACCA).\\n\\n The panel held that United States v. Strickland, 860 F.3d\\n1224 (9th Cir. 2017), which held that Oregon third-degree\\nrobbery is not a violent felony under the ACCA force clause\\nbecause it “doesn’t require physically violent force,” is not\\nclearly irreconcilable with Stokeling v. United States, 139\\nS. Ct. 544 (2019), which addressed a Florida robbery statute\\nthat requires resistance by the victim that is overcome by the\\nphysical force of the offender.\\n\\n The panel agreed with the district court that first-degree\\nrobbery in violation of Or. Rev. Stat. § 164.415(1)(a), which\\noccurs if the perpetrator is merely “armed with a deadly\\nweapon,” is not a categorically violent offense. But the\\npanel disagreed with the district court’s conclusion, under\\nthe modified categorical approach, that the defendant’s prior\\nconvictions were under Or. Rev. Stat. § 164.415(1)(b),\\nwhich requires the use or attempted use of a dangerous\\nweapon, and therefore were violent ACCA offenses. The\\npanel wrote that the Shepard documents do not establish that\\n\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f UNITED STATES V. SHELBY 3\\n\\nthe defendant was charged or convicted under\\n§ 164.415(1)(b), and therefore even assuming § 164.415(1)\\nis divisible, the district court erred in finding that the\\ndefendant had been convicted of armed robbery under\\nsubsection (b).\\n\\n\\n COUNSEL\\n\\nElizabeth G. Daily (argued), Assistant Federal Public\\nDefender; Stephen R. Sady, Chief Deputy Federal Public\\nDefender; Office of the Federal Public Defender, Portland,\\nOregon; for Defendant-Appellant.\\n\\nSuzanne B. Miles (argued) and Benjamin Tolkoff, Assistant\\nUnited States Attorneys; Kelly A. Zusman, Appellate Chief;\\nBilly J. Williams United States Attorney; United States\\nAttorney’s Office, Portland, Oregon; for Plaintiff-Appellee.\\n\\n\\n OPINION\\n\\nHURWITZ, Circuit Judge:\\n\\n The issue for decision is whether first-degree armed\\nrobbery in violation of Oregon Revised Statutes § 164.415 is\\na “violent” felony under the Armed Career Criminal Act\\n(“ACCA”), 18 U.S.C. § 924(e). As a matter of common\\nunderstanding, appellant Alan Shelby, who has been\\nconvicted of armed robbery three times in Oregon state\\ncourt, is the paradigm of an armed career criminal. But we\\nare mandated by the Supreme Court to analyze this case not\\nthrough common understanding, but rather by comparing the\\nelements of the state crime to the requirements of the federal\\nstatute. And, faithfully applying that approach, we conclude\\n\\f4 UNITED STATES V. SHELBY\\n\\nthat the Oregon convictions before us do not qualify as\\nviolent felonies under the ACCA.\\n\\n I.\\n\\n Shelby pleaded guilty in district court to one count of\\nescape in violation of 18 U.S.C. § 751(a), and one count of\\nunlawfully possessing a firearm after a felony conviction in\\nviolation 18 U.S.C. § 922(g). The ACCA mandates a 15-\\nyear minimum sentence for a person convicted under\\n§ 922(g) with “three previous convictions . . . for a violent\\nfelony or a serious drug offense, or both.” 18 U.S.C.\\n§ 924(e)(1). A violent felony is defined under the ACCA\\n“force clause” as one that “has as an element the use,\\nattempted use, or threatened use of physical force against the\\nperson of another.” 18 U.S.C. § 924(e)(2)(B)(i). The ACCA\\n“residual clause” also defines a violent felony as a crime that\\n“involves conduct that presents a serious potential risk of\\nphysical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). 1\\n\\n In seeking an ACCA enhancement to Shelby’s § 922(g)\\nsentence, the government offered proof of: (1) three prior\\nconvictions for Oregon first-degree robbery; (2) one prior\\nconviction for Oregon second-degree robbery; and (3) one\\nprior federal conviction for “Conspiracy to Manufacture,\\nPossess With Intent to Distribute and Distribute\\nMethamphetamine and Use Of a Firearm During a Drug\\nCrime.” The sentencing judge imposed the ACCA\\nenhancement; Shelby received a sentence of 180 months on\\nthe felon in possession count. The sentencing judge did not\\n\\n 1\\n The ACCA also contains an “enumerated clause,” defining a\\nviolent felony as a crime that “is burglary, arson, or extortion, [or]\\ninvolves use of explosives.” 18 U.S.C. § 924(e)(2)(B)(ii). That clause\\nis not at issue in this case.\\n\\f UNITED STATES V. SHELBY 5\\n\\nindicate which clause of the ACCA he relied upon, but\\nbecause ACCA requires three prior qualifying convictions,\\nthe sentence necessarily rests on the conclusion that Oregon\\nfirst-degree robbery is a violent felony.\\n\\n In Johnson v. United States, 135 S. Ct. 2551, 2563\\n(2015), the Supreme Court held the ACCA residual clause\\nto be unconstitutionally vague, and in Welch v. United\\nStates, 136 S. Ct. 1257, 1268 (2016), it applied the rule in\\nJohnson retroactively. After Welch was decided, Shelby\\ntimely filed a 28 U.S.C. § 2255 motion, challenging the\\nACCA enhancement because the residual clause no longer\\napplied and asserting that the three first-degree robbery\\nconvictions did not qualify as violent felonies under the\\nforce clause.\\n\\n The district court denied the motion. It started from the\\npremise that armed robbery under Or. Rev. Stat.\\n§ 164.415(1)(a) is not categorically an ACCA violent\\nfelony, because the mere possession of a concealed weapon,\\nnot its use, can establish being “armed” under the state law.\\nBut, the court found the Oregon first-degree robbery statute\\ndivisible, and held that the “indictments show that Shelby\\nwas convicted under subsection (b) of Or. Rev. Stat.\\n§ 164.415 rather than subsection (a).” Because subsection\\n(b) proscribes robberies in which the defendant “[u]ses or\\nattempts to use a dangerous weapon,” the court held that\\nShelby’s prior convictions were ACCA violent felonies.\\n\\n II.\\n\\n A.\\n\\n A felony is “violent” under the ACCA force clause if it\\n“has as an element the use, attempted use, or threatened use\\nof physical force against the person of another.” 18 U.S.C.\\n\\f6 UNITED STATES V. SHELBY\\n\\n§ 924(e)(2)(B)(i). The “physical force” must be “violent\\nforce,” or “force capable of causing physical pain or injury\\nto another person.” Johnson v. United States, 559 U.S. 133,\\n140 (2010). The force clause “encompasses robbery\\noffenses that require the criminal to overcome the victim’s\\nresistance.” Stokeling v United States, 139 S. Ct. 544, 550\\n(2019).\\n\\n Our starting point in determining whether Shelby’s\\nconvictions are violent felonies is the base Oregon robbery\\nstatute, which defines third-degree robbery as follows:\\n\\n A person commits the crime of robbery in the\\n third degree if in the course of committing or\\n attempting to commit theft or unauthorized\\n use of a vehicle as defined in ORS 164.135\\n the person uses or threatens the immediate\\n use of physical force upon another person\\n with the intent of:\\n\\n (a) Preventing or overcoming resistance to\\n the taking of the property or to retention\\n thereof immediately after the taking; or\\n\\n (b) Compelling the owner of such property or\\n another person to deliver the property or\\n to engage in other conduct which might\\n aid in the commission of the theft or\\n unauthorized use of a vehicle.\\n\\nOr. Rev. Stat. § 164.395(1). First-degree robbery occurs “if\\nthe person violates ORS 164.395 and the person: (a) Is\\narmed with a deadly weapon; (b) Uses or attempts to use a\\ndangerous weapon; or (c) Causes or attempts to cause\\nserious physical injury to any person.” Or. Rev. Stat.\\n§ 164.415(1).\\n\\f UNITED STATES V. SHELBY 7\\n\\n We held in United States v. Strickland that Oregon third-\\ndegree robbery is not a violent felony under the ACCA force\\nclause because it “doesn’t require physically violent force.”\\n860 F.3d 1224, 1227 (9th Cir. 2017). The government first\\nargues that Strickland is no longer good law after Stokeling.\\n\\n A three-judge panel can only decline to apply prior\\nCircuit precedent “clearly irreconcilable” with a subsequent\\nSupreme Court decision. Close v. Sotheby’s, Inc., 894 F.3d\\n1061, 1072–73 (9th Cir. 2018). We recognized in Ward v.\\nUnited States that “[o]ur prior distinction between\\n‘substantial’ and ‘minimal’ force in the ACCA robbery\\ncontext” does not survive Stokeling. No. 17-35563, slip op.\\nat 9 (9th Cir. Sept. 3, 2019). But, in the same case, we noted\\nthat “Stokeling made clear that force involved in snatchings,\\nwhere there is no resistance, is not sufficient to fall under the\\nACCA’s force clause.” Id. at 10 n.4. And, we stressed that\\n\\n [i]n several recent memorandum\\n dispositions, we have also recognized\\n instances of force that did not fall within “the\\n scope of the elements clause as defined in\\n Stokeling.” United States v. Lawrence,\\n 758 F. App’x 624, 625 (9th Cir. 2019); see\\n also Torres v. Whitaker, 752 F. App’x 512,\\n 513 & n.1 (9th Cir. 2019). Thus, to whatever\\n extent the state statutes discussed in Molinar\\n and other ACCA robbery cases criminalize\\n force more broadly than in Stokeling, those\\n cases have not been overruled. See Lawrence,\\n 758 F. App’x at 625 (reaffirming United\\n States v. Strickland, 860 F.3d 1224 (9th Cir.\\n 2017)).\\n\\nId.\\n\\f8 UNITED STATES V. SHELBY\\n\\n Applying this analysis, we conclude that Strickland and\\nStokeling are not clearly irreconcilable. Stokeling addressed\\na Florida statute defining robbery as “the taking of money or\\nother property . . . from the person or custody of another, . . .\\nwhen in the course of the taking there is the use of force,\\nviolence, assault, or putting in fear.” 139 S. Ct. at 549\\n(alterations in original) (quoting Fla. Stat. § 812.13(1)).\\nBecause “[t]he Florida Supreme Court has made clear that\\nthe statute required ‘resistance by the victim that is\\novercome by the physical force of the offender,’” the\\nSupreme Court held that a Florida robbery conviction\\nqualified as a violent felony under the ACCA force clause.\\nId. at 554–55 (quoting Robinson v. State, 692 So. 2d 883,\\n886 (Fla. 1997)). But, Stokeling emphasized that the state\\nstatute did not apply to “a defendant who merely snatches\\nmoney from the victim’s hand” without grabbing the\\nvictim’s fingers, or one “who steals a gold chain . . . simply\\nbecause the victim feels his fingers on the back of her neck.”\\nId. at 555 (cleaned up).\\n\\n In contrast to the Florida crime, Oregon third-degree\\nrobbery does not even require that a victim feel “much of\\nanything.” Strickland, 860 F.3d at 1227 (quoting State v.\\nJohnson, 168 P.3d 312, 313 (Or. Ct. App. 2007)). Under\\nOregon law, “a perpetrator could ‘prevent’ a victim’s\\nresistance by acting so swiftly that the victim does not have\\ntime to resist, i.e., by taking the victim’s property so quickly\\nthat resistance is futile.” Johnson, 168 P.3d at 314; see\\nBarbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir. 2019) (“[I]t\\nis clear that a conviction under section 164.395 requires only\\nminimal physical force.”). We therefore conclude that\\nStrickland survives Stokeling.\\n\\f UNITED STATES V. SHELBY 9\\n\\n B.\\n\\n The next question is whether Oregon first-degree\\nrobbery is categorically violent under the ACCA force\\nclause. The district court held that armed robbery in\\nviolation of Or. Rev. Stat. § 164.415(1)(a) is not a\\ncategorically violent offense. We agree. First-degree\\nrobbery occurs under § 164.415(1)(a) if the perpetrator is\\nmerely “armed with a deadly weapon.” “The person\\ncommitting the crime need not actually use the deadly\\nweapon, much less make any representations about it.” State\\nv. Zimmerman, 12 P.3d 996, 998 (Or. Ct. App. 2000).\\n“There is a material difference between the presence of a\\nweapon, which produces a risk of violent force, and the\\nactual or threatened use of such force. Only the latter falls\\nwithin ACCA’s force clause.” United States v. Parnell,\\n818 F.3d 974, 980 (9th Cir. 2016) (emphasis in original).\\n\\n The government argues that “no Oregon case has held\\nthat a first-degree robbery conviction could be sustained\\nunder Or. Rev. Stat. § 164.415(1)(a) based solely on a\\ndefendant’s purely covert firearm possession.” But it does\\nnot contest that the Oregon statute expressly covers such\\nconduct. “[I]f a state statute explicitly defines a crime more\\nbroadly than the generic definition, no legal imagination is\\nrequired to hold that a realistic probability exists that the\\nstate will apply its statute to conduct that falls outside the\\ngeneric definition of the crime.” United States v. Brown,\\n879 F.3d 1043, 1050 (9th Cir. 2018) (quoting Chavez-Solis\\nv. Lynch, 803 F.3d 1004, 1009–10 (9th Cir. 2015)). 2\\n\\n\\n 2\\n Our conclusion is consistent with this Court’s interpretations of\\nsimilar state armed robbery statutes. See United States v. Molinar,\\n881 F.3d 1064, 1069–70 (9th Cir. 2017) (holding that Arizona’s armed\\n\\f10 UNITED STATES V. SHELBY\\n\\n C.\\n\\n Although correctly concluding that armed robbery under\\nOr. Rev. Stat. § 164.415(1)(a) did not qualify as an ACCA\\nviolent offense under the force clause, the district court\\nfound that § 164.415 was divisible under the rule of\\nDescamps v. United States, 570 U.S. 254, 261–64 (2013). It\\nthen concluded that Shelby’s prior convictions were under\\nOr. Rev. Stat. § 164.415(1)(b), which requires the use or\\nattempted use of a dangerous weapon, and therefore were\\nviolent ACCA offenses.\\n\\n If a statute is divisible, the modified categorical approach\\nallows looking “to a limited class of documents (for\\nexample, the indictment, jury instructions, or plea agreement\\nand colloquy) to determine what crime, with what elements,\\na defendant was convicted of.” Mathis v. United States,\\n136 S. Ct. 2243, 2249 (2016). But, when the so-called\\n“Shepard documents,” see Shepard v. United States, 544\\nU.S. 13, 16 (2005), do not make clear what section of a\\ndivisible statute the defendant was convicted under, a prior\\nconviction cannot constitute a disqualifying offense under\\nthe modified categorical approach. See Marinelarena v.\\nBarr, No. 14-72003, 2019 WL 3227458, at *6 (9th Cir. July\\n\\n\\nrobbery statute does not qualify as a “crime of violence” in part because\\nit “does not require that the robber actually use or even threaten to use a\\nweapon”); United States v. Geozos, 870 F.3d 890, 899–901 (9th Cir.\\n2017) (holding that Florida armed robbery, which requires a defendant\\nto “carr[y] a firearm or other deadly weapon” in “the course of\\ncommitting the robbery,” did not qualify as a violent felony in part\\nbecause “it would have been possible for someone to be convicted of\\nviolating the statute for carrying a firearm during a robbery even if that\\nfirearm was not displayed and the victim of the robbery was unaware of\\nits presence”).\\n\\f UNITED STATES V. SHELBY 11\\n\\n18, 2019) (“[A]mbiguity in the record as to a petitioner’s\\noffense of conviction means that the petitioner has not been\\nconvicted of an offense disqualifying her from relief.”); see\\nalso United States v. Arriaga-Pinon, 852 F.3d 1195, 1199–\\n1200 (9th Cir. 2017).\\n\\n The indictments for Shelby’s Oregon first-degree\\nrobbery convictions do not specify whether he was accused\\nof violating subsection (a) or subsection (b) of § 164.415(1),\\nor both. Each alleges that Shelby was “armed with . . . a\\ndeadly weapon,” but none alleges that he used the weapon\\nduring the charged robbery. 3 And, the judgments of\\n 3\\n The indictment in Lane County Case No. 10-83-06212 alleged:\\n\\n The defendant on or about the 6th day of July, 1982,\\n in the county aforesaid . . . did unlawfully and\\n knowingly use and threaten the immediate use of\\n physical force upon [the victim], and was armed with\\n a handgun, a deadly weapon, while in the course of\\n committing and attempting to commit theft of United\\n States money and other property with the intent of\\n preventing or overcoming resistance to the defendants\\n taking and retention immediately after the taking of\\n the property[.]\\n\\n The indictment in Lane County Case No. 10-83-07615 alleged:\\n\\n The defendant on or about the 30th day of May, 1982,\\n in the county aforesaid . . . did unlawfully and\\n knowingly use and threaten the immediate use of\\n physical force upon [the victim], and was armed with\\n a pistol, a deadly weapon, while in the course of\\n committing and attempting to commit theft of money\\n and other property, with the intent of preventing and\\n overcoming resistance to the defendant’s taking and\\n retention immediately after the taking of the\\n property[.]\\n\\f12 UNITED STATES V. SHELBY\\n\\nconviction simply state that Shelby pleaded guilty to the\\nfirst-degree robbery offense charged, without identifying a\\nsubsection of the Oregon statute. The Shepard documents\\ntherefore simply do not establish that Shelby was charged or\\nconvicted under § 164.415(1)(b). And, even if the Shepard\\ndocuments could be read as alleging crimes under both\\nsubsections (a) and (b), the elements of the offense of\\nconviction remain unclear when the defendant is convicted\\nunder a conjunctively phrased charging document. United\\nStates v. Lee, 821 F.3d 1124, 1129 (9th Cir. 2016).\\nTherefore, even assuming that § 164.415(1) is divisible, the\\ndistrict court erred in finding that Shelby had been convicted\\nof armed robbery under subsection (b).\\n\\n III.\\n\\n For the reasons above, we REVERSE the district court’s\\ndenial of Shelby’s § 2255 motion, and REMAND with\\n\\n\\n\\n\\n The indictment in Lane County Case No. 10-83-07616 alleged:\\n\\n The defendant on or about the 24th day of March,\\n 1981, in the county aforesaid . . . did unlawfully and\\n knowingly use and threaten the immediate use of\\n physical force upon [the victim], and was armed with\\n a rifle and a shotgun, deadly weapons, while in the\\n course of committing and attempting to commit theft\\n of United States money and other property with the\\n intent of preventing and overcoming resistance to the\\n defendants taking and retention immediately after the\\n taking of the property[.]\\n\\f UNITED STATES V. SHELBY 13\\n\\ninstructions to grant the § 2255 motion and for resentencing\\non an open record. 4\\n\\n\\n\\n\\n 4\\n The government argues for the first time on appeal that because\\nShelby’s Oregon robbery sentences were enhanced for the “use or\\nthreatened use of a firearm” by “an additional mandatory minimum term\\nof five (5) years pursuant to ORS 161.610,” the judgments of conviction\\nestablish that he was convicted under Or. Rev. Stat. § 164.415(1)(b). We\\ndecline to address this argument in the first instance. See In re Mercury\\nInteractive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010) (“[A]n\\nissue will generally be deemed waived on appeal if the argument was not\\nraised sufficiently for the trial court to rule on it.” (internal quotation\\nmarks and citation omitted)). Because we remand for resentencing on\\nan open record, the government may present this argument to the district\\ncourt.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4470,"cells":{"id":{"kind":"number","value":4662528,"string":"4,662,528"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Shelly Ioane v. Jean Noll"},"decision_date":{"kind":"string","value":"2019-09-19"},"docket_number":{"kind":"string","value":"16-16089"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Carlos T. Bea and Mary H. Murguia, Circuit Judges, and Donald W. Molloy, * District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"MURGUIA, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nSHELLY J. IOANE, No. 16-16089\\n Plaintiff-Appellee,\\n D.C. No.\\n v. 1:07-cv-00620-\\n AWI-EPG\\nJEFF HODGES; MICHELLE CASAREZ,\\nFederal Officer; BRIAN APPLEGATE,\\nFederal Officer; KENT SPJUTE, ORDER AND\\nFederal Officer, AMENDED\\n Defendants, OPINION\\n\\n and\\n\\nJEAN NOLL,\\n Defendant-Appellant.\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of California\\n Anthony W. Ishii, District Judge, Presiding\\n\\n Argued and Submitted April 13, 2018\\n Pasadena, California\\n\\n Filed September 10, 2018\\n Amended September 19, 2019\\n\\n2 IOANE V. NOLL\\n\\n Before: Carlos T. Bea and Mary H. Murguia, Circuit\\n Judges, and Donald W. Molloy, * District Judge.\\n\\n Order;\\n Opinion by Judge Murguia;\\n Partial Concurrence and Partial Dissent by Judge Bea\\n\\n\\n SUMMARY **\\n\\n\\n Bivens\\n\\n The panel amended the opinion and concurrence filed on\\nSeptember 10, 2018, and affirmed the district court’s order\\ndenying Internal Revenue Service Agent Jean Noll’s motion\\nfor summary judgment based on her alleged qualified\\nimmunity in a Bivens v. Six Unknown Named Agents of Fed.\\nBureau of Narcotics, 403 U.S. 388 (1971), suit alleging that\\nAgent Noll violated plaintiff’s Fourth Amendment right to\\nbodily privacy during the lawful execution of a search\\nwarrant at plaintiff’s home in 2006.\\n\\n The panel first held that plaintiff could proceed with her\\nBivens suit against Agent Noll. Applying the test in Ziglar\\nv. Abbasi, 137 S. Ct. 1843 (2017), the panel held that this\\ncase was similar to Bivens and therefore did not present a\\n“new context” where plaintiff’s claim was that a federal\\n\\n\\n *\\n The Honorable Donald W. Molloy, United States District Judge\\nfor the District of Montana, sitting by designation.\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\n IOANE V. NOLL 3\\n\\nagent conducted a warrantless search of her person in\\nviolation of her Fourth Amendment right to bodily privacy.\\n\\n The panel turned to the issue of qualified immunity and\\nits first prong of reasonableness. The panel held that the\\nscope of the intrusion into plaintiff’s bodily privacy here was\\nsignificant, and weighed in favor of a determination of\\nunreasonableness. In addition, the manner of Agent Noll’s\\nintrusion weighed in favor of concluding that the intrusion\\nwas unreasonable. Further, the panel held that none of the\\njustifications Agent Noll offered for initiating the search\\nwere borne out by the facts. The panel affirmed the district\\ncourt on this issue.\\n\\n The second part of the qualified immunity test required\\na determination whether, at the time of Agent Noll’s actions\\nin June 2006, the law was clearly established. The panel held\\nthat by 2006, much of the Circuit’s precedent regarding the\\nright to bodily privacy had been established. The panel held\\nthat a reasonable officer in Agent Noll’s position would\\nhave known that such a significant intrusion into bodily\\nprivacy, in the absence of legitimate government\\njustification, was unlawful. The panel concluded that the\\nunlawfulness of Agent Noll’s conduct was beyond debate,\\nand Agent Noll was not entitled to qualified immunity.\\n\\n Judge Bea concurred in part and concurred in the\\njudgment. Judge Bea agreed with the majority that the case\\ndid not extend Bivens to a new context, and that the district\\ncourt did not err in denying Agent Noll’s motion for\\nsummary judgment regarding plaintiff’s claim that Agent\\nNoll violated plaintiff’s clearly established constitutional\\nrights. Judge Bea would hold that Agent Noll’s actions\\nviolated plaintiff’s Fourth Amendment rights as clearly\\nestablished in Ybarra v. Illinois, 444 U.S. 85 (1979). Judge\\n\\n4 IOANE V. NOLL\\n\\nBea disagreed with the majority’s holding that Agent Noll’s\\nactions violated plaintiff’s clearly established right to bodily\\nprivacy.\\n\\n\\n COUNSEL\\n\\nGretchen M. Wolfinger (argued), Jonathan S. Cohen, and\\nGilbert S. Rothenberg, Attorneys; Caroline D. Ciraolo,\\nPrincipal Deputy Assistant Attorney General; Diana L.\\nErbsen, Deputy Assistant Attorney General; Tax\\nDivision/Appellate Section, United States Department of\\nJustice, Washington, D.C.; for Defendant-Appellant.\\n\\nAriel Beverly (argued) and Norvik Azarian (argued),\\nCertified Law Students; Paula M. Mitchell, Supervisor,\\nLoyola Law School; E. Martin Estrada, Munger Tolles &\\nOlson LLP, Los Angeles, California; for Plaintiff-Appellee.\\n\\n IOANE V. NOLL 5\\n\\n ORDER\\n\\n The opinion and concurrence filed on September 10,\\n2018, and appearing at 903 F.3d 929, is hereby amended. An\\namended opinion and concurrence is filed herewith.\\n\\n The parties are hereby granted leave to file a petition for\\nrehearing and/or suggestion for rehearing en banc, pursuant\\nto FRAP 40 and G.O. 5.3(a).\\n\\n\\n\\n OPINION\\n\\nMURGUIA, Circuit Judge:\\n\\n Plaintiff Shelly Ioane filed a Bivens suit against Internal\\nRevenue Service (“IRS”) Agent Jean Noll. Shelly alleged\\nthat Agent Noll violated her Fourth Amendment right to\\nbodily privacy when, during the lawful execution of a search\\nwarrant at her home, Agent Noll escorted Shelly to the\\nbathroom and monitored Shelly while she relieved herself.\\nAgent Noll moved for summary judgment, claiming that she\\nwas entitled to qualified immunity. The district court denied\\nAgent Noll’s motion, and she appeals. 1\\n\\n\\n 1\\n At summary judgment, plaintiffs included Shelly and her husband,\\nMichael Ioane, Sr. Plaintiffs initially pursued several causes of action\\nagainst the United States and the Federal agents who executed the search\\nwarrant on the Ioane residence. However, the only claims remaining at\\nthe summary judgment stage were for excessive force and invasion of\\nbodily privacy in violation of their Fourth Amendment rights. The Ioanes\\nclaimed that the Federal agents, including Agent Noll, used excessive\\nforce when the Federal agents pointed guns at the Ioanes’ heads, and that\\nAgent Noll invaded Shelly’s bodily privacy when Agent Noll entered the\\nbathroom with Shelly and monitored Shelly while she relieved herself.\\n\\n6 IOANE V. NOLL\\n\\n We have jurisdiction over this interlocutory appeal,\\nMitchell v. Forsyth, 472 U.S. 511, 530 (1985), and we\\naffirm.\\n\\n Background\\n\\n In 2006, Michael Ioane, Sr. (“Michael”) was under\\ninvestigation for criminal tax fraud and conspiracy. At the\\ntime, Agent Noll was a Supervisory Special Agent for the\\nIRS Criminal Investigation Division, and she was asked to\\nassist in executing a search warrant as part of the\\ninvestigation regarding Michael. Prior to executing the\\nsearch warrant, agents learned that the Ioanes had registered\\nweapons and that these weapons likely would be at their\\nhome. The search warrant authorized the IRS agents to\\nsearch the Ioane residence for, among other things, records,\\ncomputers, computer-related equipment, and computer\\nstorage devices.\\n\\n On June 8, 2006, agents from the IRS Criminal\\nInvestigation Division, including Agent Noll, arrived at the\\nIoane residence to conduct the search. Only Michael and\\nShelly were home at the time. The IRS agents informed\\nMichael and Shelly that they could stay on the premises if\\nthey cooperated with the agents conducting the search.\\nHowever, the agents informed the Ioanes that if they chose\\nto leave the premises, they would not be allowed to return.\\nBoth Ioanes stayed on the premises, and sat in the kitchen\\nwhile the agents conducted the search.\\n\\n\\n\\n\\nThe district court granted summary judgment for Agent Noll on\\nplaintiffs’ excessive force claim, but denied Agent Noll summary\\njudgment on Shelly’s invasion of bodily privacy claim.\\n\\n IOANE V. NOLL 7\\n\\n At some point early in the search, Michael needed to use\\nthe bathroom. A male agent escorted Michael to the\\nbathroom and conducted a quick search of the bathroom\\narea—opening a couple of drawers and looking in the\\nshower—before exiting and closing the door behind him.\\nThe male officer stood outside the closed bathroom door\\nwhile Michael relieved himself.\\n\\n Then, about a half an hour into the search, Shelly told the\\nagents that she needed to use the bathroom. Agent Noll\\nescorted Shelly to the bathroom, and when she stepped\\ninside and started to close the door, Agent Noll told Shelly\\nthat she had to come inside, too. Shelly asked Agent Noll to\\nwait outside, but Agent Noll resisted her plea. Agent Noll\\ntold Shelly to remove her clothing so that she could make\\nsure Shelly did not have anything hidden on her person.\\nWhen Shelly objected, Agent Noll explained that she needed\\nto make sure Shelly did not hide or destroy anything, and\\nthat this was standard procedure. Shelly, who was wearing a\\nlong sundress, pulled up her dress so Agent Noll could see\\nthat she was not hiding anything. According to Shelly, Agent\\nNoll made Shelly hold up her dress while she relieved\\nherself, using one hand to hold up her dress and the other to\\npull her underwear down. Agent Noll faced Shelly while\\nShelly used the bathroom, and when Shelly was finished,\\nAgent Noll escorted her back to the kitchen.\\n\\n Analysis\\n\\n On appeal, Agent Noll claims that the district court erred\\nwhen it determined that she is not entitled to qualified\\nimmunity from Shelly’s invasion of bodily privacy claim.\\nAgent Noll contends that her actions were objectively\\nreasonable, and therefore did not violate Shelly’s Fourth\\nAmendment rights. Further, Agent Noll argues that even if\\nher actions were not reasonable, the law was not so clearly\\n\\n8 IOANE V. NOLL\\n\\nestablished in 2006 that a reasonable officer in her position\\nwould have known that her actions were unlawful.\\n\\n We review a district court’s legal conclusion that an\\nofficial is not entitled to qualified immunity de novo. Eng v.\\nCooley, 552 F.3d 1062, 1067 (9th Cir. 2009) (“Our\\ninterlocutory jurisdiction to review a denial of qualified\\nimmunity is limited exclusively to questions of law, which\\nwe review de novo.”).\\n\\n Qualified immunity balances “the need to hold public\\nofficials accountable when they exercise power\\nirresponsibly and the need to shield officials from\\nharassment, distraction, and liability when they perform\\ntheir duties reasonably.” Pearson v. Callahan, 555 U.S. 223,\\n231 (2009). To balance these competing interests, we\\nperform a two-part test. Saucier v. Katz, 533 U.S. 194, 201\\n(2001); Crowe v. Cty. of San Diego, 608 F.3d 406, 427 (9th\\nCir. 2010). An officer is entitled to qualified immunity under\\nthis test unless (1) the facts, construed in the light most\\nfavorable to the plaintiff, demonstrate that the officer’s\\nconduct violated a constitutional right, and (2) the right was\\nclearly established at the time of the asserted violation. Karl\\nv. City of Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir.\\n2012); Saucier, 533 U.S. at 201. If there is no constitutional\\nviolation, the inquiry ends and the officer is entitled to\\nqualified immunity. Saucier, 533 U.S. at 201. On the other\\nhand, if we determine that the alleged facts establish a\\nconstitutional violation, we proceed to part two of the test to\\ndetermine whether the right at issue was clearly established.\\nId. While we have discretion to begin our analysis with\\neither part of the test, Pearson, 555 U.S. at 236, it is\\nnevertheless beneficial to begin with the first part of the test\\nbecause it “promotes the development of constitutional\\nprecedent and is especially valuable with respect to\\n\\n IOANE V. NOLL 9\\n\\nquestions that do not frequently arise in cases in which a\\nqualified immunity defense is unavailable.” Plumhoff v.\\nRickard, 572 U.S. 765, 774 (2014) (quoting Pearson,\\n555 U.S. at 236).\\n\\n 1. Bivens Claim\\n\\n Before reaching the issue of qualified immunity, the first\\nquestion we must address is whether Shelly may bring a\\nBivens suit against Agent Noll. Hernandez v. Mesa, 137 S.\\nCt. 2003, 2006 (2017) (whether Bivens applies “is\\n‘antecedent’ to the other questions presented”) (quoting\\nWood v. Moss, 572 U.S. 744, 757 (2014)).\\n\\n In 1971, the Supreme Court recognized for the first time\\nan implied right of action against federal officers for\\nconstitutional violations. Bivens v. Six Unknown Named\\nAgents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In\\nBivens, the Court held that plaintiff Webster Bivens was\\nentitled to sue federal agents for damages arising out of an\\nunlawful arrest and search, in violation of his Fourth\\nAmendment rights. Id. at 389–90.\\n\\n Following Bivens, however, the Supreme Court has\\nrepeatedly refused to recognize an implied damages remedy\\nagainst federal officials. See Rodriguez v. Swartz, 899 F.3d\\n719, 737 (9th Cir. 2018) (collecting cases). Recently, the\\nCourt “made clear that expanding the Bivens remedy is now\\na ‘disfavored’ judicial activity.” Ziglar v. Abbasi, 137 S. Ct.\\n1843, 1857 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662,\\n675 (2009)). “This [trend] is in accord with the Court’s\\nobservation that it has ‘consistently refused to extend Bivens\\nto any new context or new category of defendants.’” Id.\\n(quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68\\n(2001)).\\n\\n10 IOANE V. NOLL\\n\\n In Abbasi, the Supreme Court laid out a two-step test for\\ndetermining when a Bivens claim should be recognized.\\n“[T]he first question a court must ask . . . is whether the\\nclaim arises in a new Bivens context[.]” Id. at 1864. A case\\npresents a new context if it “is different in a meaningful way\\nfrom previous Bivens cases decided by th[e Supreme\\nCourt].” Id. Abbasi outlined the following non-exhaustive\\n“list of differences that are meaningful enough to make a\\ngiven context a new one”:\\n\\n A case might differ in a meaningful way\\n because of [1] the rank of the officers\\n involved; [2] the constitutional right at issue;\\n [3] the generality or specificity of the official\\n action; [4] the extent of judicial guidance as\\n to how an officer should respond to the\\n problem or emergency to be confronted;\\n [5] the statutory or other legal mandate under\\n which the officer was operating; [6] the risk\\n of disruptive intrusion by the Judiciary into\\n the functioning of other branches; or [7] the\\n presence of potential special factors that\\n previous Bivens cases did not consider.\\n\\nId. at 1859–60.\\n\\n If the case presents a new Bivens context, then the court\\nproceeds to step two. At step two, a court may extend Bivens\\nin a new context only if two conditions are met. First, “the\\nplaintiff must not have any other adequate alternative\\nremedy.” Rodriguez, 899 F.3d at 738. Second, “there cannot\\nbe any ‘special factors’ that lead [the court] to believe that\\nCongress, instead of the courts, should be the one to\\nauthorize a suit for money damages.” Id. While the Supreme\\nCourt has yet to define the term, “special factors,” it has\\n\\n IOANE V. NOLL 11\\n\\nexplained that “the inquiry must concentrate on whether the\\nJudiciary is well suited, absent congressional action or\\ninstruction, to consider and weigh the costs and benefits of\\nallowing a damages action to proceed.” Abbasi, 137 S. Ct.\\nat 1857–58. Therefore, “to be a ‘special factor counselling\\nhesitation,’ a factor must cause a court to hesitate before\\nanswering that question in the affirmative.” Id. at 1858.\\n\\n Here, a review of the Abbasi factors in the first step of\\nthe Bivens analysis demonstrates that this case is similar to\\nBivens and therefore does not present a “new context.” Both\\ncases concern an individual’s Fourth Amendment right to be\\nfree from unreasonable searches and seizures. In Bivens,\\nfederal agents allegedly searched Bivens’s home and his\\nperson (by subjecting him to a visual strip search), without\\nprobable cause or a warrant. See 403 U.S. at 389. Likewise,\\nShelly’s claim here is that a federal agent conducted a\\nwarrantless search of her person in violation of her Fourth\\nAmendment right to bodily privacy.\\n\\n There is no difference between the two cases with\\nrespect to the rank of the officers involved, the generality or\\nspecificity of the official action at issue, or the legal mandate\\nunder which the officers were operating. 2 Further, the extent\\nof judicial guidance as to how Agent Noll should have\\nresponded to the problem was well established. 3\\n\\n 2\\n The fact that Agent Noll searched the Ioane residence pursuant to\\na lawful search warrant, unlike in Bivens where the agents were wholly\\nwithout any warrant, is of no significance. The only Fourth Amendment\\nclaim at issue here is Shelly’s. With respect to Shelly, Agent Noll\\nconducted a warrantless search of her person.\\n 3\\n This Abbasi factor—“the extent of judicial guidance as to how an\\nofficer should respond to the problem or emergency to be confronted,”\\nAbbasi, 137 S. Ct. at 1860—is analogous to the question in a qualified\\n\\n12 IOANE V. NOLL\\n\\nRecognizing a Bivens action in this closely analogous case\\nalso does not result in any intrusion by the judiciary into the\\nfunctioning of other branches. See Bivens, 403 U.S. at 407\\n(Harlan, J., concurring) (“[T]he judiciary has a particular\\nresponsibility to assure the vindication of constitutional\\ninterests such as those embraced by the Fourth\\nAmendment.”). Nor does this case implicate any special\\nfactors not considered previously that counsel against\\nrecognizing a Bivens remedy.\\n\\n Rather, as was the case in Bivens, there is no alternative\\nremedy for a person in Shelly’s position—“it is damages or\\nnothing.” Id. at 410 (Harlan, J., concurring); cf. Abbasi,\\n137 S. Ct. at 1865 (“[T]he existence of alternative remedies\\nusually precludes a court from authorizing a Bivens\\naction.”). Accordingly, Shelly may proceed with her Bivens\\nsuit against Agent Noll. 4\\n\\n 2. Reasonableness\\n\\n We now turn to the issue of qualified immunity and\\nbegin with its first prong. While the Ninth Circuit never has\\narticulated a standard for when an officer’s intentional\\n\\nimmunity analysis of whether the law was “clearly established” at the\\ntime of the officer’s actions such that a “reasonable official would\\nunderstand that what [she] is doing violates” a person’s constitutional\\nright. Anderson v. Creighton, 483 U.S. 635, 640 (1987). While Judge\\nBea disagrees with the majority that Shelly’s right to bodily privacy from\\na same-sex strip search was clearly established at the time (as explained\\nin his separate concurrence), we all agree at a minimum that Shelly’s\\nright to be free from an unreasonable search was clearly established\\nunder Ybarra v. Illinois, 444 U.S. 85 (1979).\\n 4\\n Because we conclude that Shelly’s Bivens claim does not present\\na “new context,” we need not consider the second part of the Bivens\\nanalysis.\\n\\n IOANE V. NOLL 13\\n\\nviewing of an individual’s naked body is constitutionally\\npermissible under the Fourth Amendment, “[t]he touchstone\\nof the Fourth Amendment is reasonableness.” Florida v.\\nJimeno, 500 U.S. 248, 250 (1991) (citing Katz v. United\\nStates, 389 U.S. 347, 360 (1967)). Determining the\\nreasonableness of a particular search involves balancing the\\ndegree to which the search intrudes upon an individual’s\\nprivacy against the degree to which the search is needed to\\nfurther legitimate governmental interests. United States v.\\nKnights, 534 U.S. 112, 118–19 (2001). The required factors\\nto consider are: “(1) the scope of the particular intrusion,\\n(2) the manner in which it is conducted, (3) the justification\\nfor initiating it, and (4) the place in which it is conducted.”\\nByrd v. Maricopa Cty. Sheriff’s Dep’t, 629 F.3d 1135, 1141\\n(9th Cir. 2011) (citing Bell v. Wolfish, 441 U.S. 520, 559\\n(1979) (internal quotation marks omitted)).\\n\\n Three cases from our Circuit inform the scope and\\nmanner of the intrusion here. We first recognized the right\\nto bodily privacy in 1963. In York v. Story, we held that a\\nplaintiff had alleged sufficient facts to state an invasion of\\nbodily privacy claim under § 1983 when she alleged that\\nthree police officers took and distributed nude photos of her\\nwhen she came to the station to report that she had been\\nassaulted. 324 F.2d 450, 452, 455–56 (9th Cir. 1963).\\nAccording to the allegations in the complaint, the officers\\nhad insisted that it was necessary to take photos of the\\nplaintiff for her case, and directed her to undress in a room\\nof the police station despite the plaintiff’s objections and\\ninsistence that she did not have bruises that required her to\\nbe photographed in the nude. Id.at 452. Recognizing that the\\n“naked body” is the most “basic subject of privacy,” we\\nconcluded that the woman had alleged a claim that the\\nofficers’ actions violated her privacy rights under the\\nFourteenth Amendment due process clause. Id. at 455–56.\\n\\n14 IOANE V. NOLL\\n\\n In 1985, we recognized that the right to bodily privacy\\nalso applies to inmates. In Grummett v. Rushen, male prison\\ninmates filed a class action § 1983 lawsuit alleging that the\\nprison’s practice of allowing female correction officers to\\nview male inmates showering, disrobing, and using toilet\\nfacilities violated their privacy rights. 779 F.2d 491, 492–93\\n(9th Cir. 1985). Although we held that the prisoners had a\\nright to privacy in their naked body, id. at 494, we concluded\\nthat the officials had not violated the inmates’ privacy rights\\nbecause the officials’ view of the inmates was “restricted by\\ndistance,” “casual in nature,” and justified by security needs,\\nid. at 495–96. We concluded that the prison authorities had\\n“devised the least intrusive means to serve the state’s\\ninterests in prison security” and had not violated the inmates’\\nrights to bodily privacy. Id. at 494 (citing Wooley v.\\nMaynard, 430 U.S. 705, 716 (1976)).\\n\\n Finally, in 1992, we held that a parole officer violated a\\nfemale parolee’s right to bodily privacy when he entered the\\nbathroom stall while the parolee was providing a urine\\nsample. Sepulveda v. Ramirez, 967 F.2d 1413, 1415–16 (9th\\nCir. 1992). Distinguishing the facts in Grummett, we\\ndetermined that the parole officer’s view of the parolee was\\n“neither obscured nor distant,” and “far more degrading to\\n[the parolee] than the situation faced by the inmates in\\nGrummett.” Id. at 1416. Relying on Grummett and\\nrecognizing that parolee rights are “even more extensive\\nthan those of inmates,” we concluded that the parole officer\\nhad violated the parolee’s bodily privacy rights. Id. at 1416.\\n\\n From York, Grummett, and Sepulveda, we conclude that\\nthe scope of the intrusion into Shelly’s bodily privacy here\\nwas significant. Agent Noll intruded on Shelly’s most basic\\nsubject of privacy, her naked body. See York, 324 F.2d at\\n455. Moreover, unlike the prison inmates in Grummett and\\n\\n IOANE V. NOLL 15\\n\\nthe parolee in Sepulveda, Shelly’s privacy interests had not\\nbeen reduced. Just as in Sepulveda, where we recognized\\nthat parolees have, “at a minimum, the same right to bodily\\nprivacy as a prison inmate,” 967 F.2d at 1416, Shelly, who\\nhad not been detained and was not herself the subject of a\\nsearch warrant, had more right to bodily privacy than a\\nparolee. See Samson v. California, 547 U.S. 843, 850 (2006)\\n(explaining that parolees are on the “continuum” of state-\\nimposed punishments with fewer expectations of privacy\\nthan probationers because parole is more akin to\\nimprisonment). Therefore, the scope of Agent Noll’s\\nintrusion into Shelly’s bodily privacy right was significant\\nand weighs in favor of a determination of unreasonableness. 5\\n\\n\\n\\n\\n 5\\n Although York, Grummett, and Sepulveda all involved searches by\\nmembers of the opposite sex, gender was not central to the conclusion of\\nwhether the intrusion at issue was unreasonable. Indeed, York,\\nGrummett, and Sepulveda recognize that the naked body is the most\\nbasic subject of privacy, and an arbitrary intrusion by any government\\nactor is unconstitutional. See York, 324 F.2d at 455 (“The desire to shield\\none’s unclothed figure from view of strangers, and particularly strangers\\nof the opposite sex, is impelled by elementary self-respect and personal\\ndignity.”); see also Grummett, 779 F.2d at 495 (finding no violation even\\nwhere prison search conducted by member of the opposite sex);\\nSepulveda, 967 F.2d at 1416 (emphasizing the up-close, unobscured\\nprivacy intrusion rather than the fact that the parole officer and parolee\\nwere of opposite genders); Byrd, 629 F.3d at 1150 (N.R. Smith, J.,\\ndissenting in part) (“In evaluating the scope of a search, the searching\\nofficer’s gender is irrelevant.”). The concurrence takes a different view\\nregarding these cases, but it appears from these cases that gender is a\\nfactor for evaluating the severity of the intrusion rather than the mark of\\nthe intrusion itself. Indeed, as with any Fourth Amendment analysis, the\\nquestion is balancing the nature of the intrusion against the degree to\\nwhich the search is needed to further legitimate governmental interests.\\nKnights, 534 U.S. at 118–19. That Agent Noll and Shelly both are\\n\\n16 IOANE V. NOLL\\n\\n Additionally, unlike the casual, obscured, and restricted\\nmanner of observation by the prison officials in Grummett,\\nAgent Noll stood facing Shelly in the Ioanes’ home\\nbathroom while Shelly relieved herself. Agent Noll’s\\nintrusion was like the parole officer’s intrusion in Sepulveda,\\nwhich we concluded was unreasonable. 6 See Sepulveda,\\n967 F.2d at 1415–16; see also York 324 F.2d at 455.\\nTherefore, the manner of Agent Noll’s intrusion weighs in\\nfavor of concluding that the intrusion was unreasonable. See\\nByrd, 629 F.3d at 1142–43 (weighing the Bell factors to\\ndetermine whether the intrusion was reasonable).\\n\\n Furthermore, none of the justifications Agent Noll\\noffered for initiating the search are borne out by the facts.\\nFirst, and most notably, the Ioanes were not detained during\\nexecution of the search warrant. Despite the fact that the\\nFourth Amendment permits limited detention of individuals\\non the premises while officers execute a search warrant, see\\nMichigan v. Summers, 452 U.S. 692, 703–05 (1981), the\\nagents informed the Ioanes they were free to go. 7 Yet Agent\\n\\nwomen does not change that Agent Noll violated Shelly’s privacy rights.\\nSee York, 324 F.2d at 455.\\n 6\\n Agent Noll contends that she does not recall escorting Shelly to the\\nbathroom, but that such a practice is “standard procedure.” However,\\nnowhere in the record is this procedure memorialized, and it appears the\\nother agents did not follow this “standard procedure” when Michael used\\nthe bathroom.\\n 7\\n In Summers, the Supreme Court held that it was reasonable, for\\nFourth Amendment purposes, to detain individuals while officers\\nexecute a lawful warrant on the premises. 452 U.S. at 703–05. This\\nlimited detention is justified by preventing flight, loss of incriminating\\nevidence, and harm to occupants and officers. Id. at 702–03. However,\\nthe Supreme Court has not held that these government interests authorize\\nthe type of bodily privacy intrusion that took place here.\\n\\n IOANE V. NOLL 17\\n\\nNoll contends that her intrusion into Shelly’s bodily privacy\\nwas justified because of the inherent risk that Shelly might\\ndestroy evidence. However, the fact that the Ioanes were not\\ndetained belies Agent Noll’s contention that she and the\\nother agents were worried about Shelly destroying “floppy\\ndisks, smart cards and PC cards . . . [hidden] on her person\\nunder her dress.” If the agents legitimately feared that Shelly\\nmight destroy evidence in the bathroom, they would not have\\npermitted Shelly to leave the premises where she could have\\ndestroyed of the evidence elsewhere, and they would have\\nbeen constitutionally permitted to do so. See id.\\n\\n Second, Agent Noll argues that monitoring Shelly was\\nnecessary to ensure that Shelly did not have anything\\ndangerous concealed in her clothing. Yet the search warrant\\nauthorized only the search of the premises, not the\\nindividuals on the premises. See Ybarra v. Illinois, 444 U.S.\\n85, 91–92 (1979) (rejecting the argument that individuals’\\nFourth Amendment rights are abrogated simply by virtue of\\nthe fact that they are on the premises where officers are\\nexecuting a lawful search warrant). Furthermore, Agent Noll\\ndoes not argue that she had a reasonable belief that Shelly\\nwas armed except for asserting that the agents had found\\nother weapons on the premises. And, even if Agent Noll\\npossessed an objectively reasonable belief that Shelly was\\narmed and dangerous, this belief only would have justified a\\npat-down for weapons, not the intrusion into bodily privacy\\nthat occurred here. See id. at 92–93 (holding that an officer\\nmust possess a reasonable belief that an individual is armed\\nand dangerous before conducting a weapons pat-down, even\\nif the individual is on the premises where officers are\\nexecuting a search warrant) (citing Adams v. Williams,\\n407 U.S. 143, 146 (1972); Terry v. Ohio, 392 U.S. 1, 21–27\\n(1968)). Indeed, the agents had monitored Shelly in the\\nkitchen for approximately 30 minutes before Shelly asked to\\n\\n18 IOANE V. NOLL\\n\\nuse the bathroom, and nowhere in the record does it reflect\\nthat the officers conducted a pat-down search of Shelly or\\nMichael.\\n\\n Third, Agent Noll asserts that other safety concerns\\njustified monitoring Shelly while she used the bathroom\\nbecause the bathroom was not secure, and Shelly could have\\ngained access to the rest of the house through a second door\\nin the bathroom, putting officers or herself at risk. However,\\nby the time Shelly needed to use the bathroom, other agents\\nalready had checked the bathroom for weapons.\\nAdditionally, Agent Noll offers no explanation why\\nwatching Shelly use the bathroom was the only way to abate\\nthe risk that Shelly might flee, given that other officers might\\nhave been recruited to stand outside the bathroom’s second\\ndoor. See Grummett, 779 F.3d at 494 (concluding that the\\nprison had not violated inmates’ rights when the prison had\\ndevised the least intrusive means to serve the state security\\ninterests). Indeed, the agents permitted Michael, who was\\nthe subject of the investigation, to use the bathroom while a\\nmale agent stood outside the door. In sum, the justifications\\nAgent Noll offers for initiating the search weigh in favor of\\na determination of unreasonableness.\\n\\n Finally, the search was conducted in the Ioane’s home\\nbathroom. The law recognizes heightened privacy interests\\nin the home, which arguably makes this intrusion more\\negregious, especially when Shelly herself was not the subject\\nof the search. See Kyllo v. United States, 533 U.S. 27, 31\\n(2001). The place of the search, therefore, also weighs in\\nfavor of unreasonableness.\\n\\n Weighing the scope, manner, justification, and place of\\nthe search, a reasonable jury could conclude that Agent\\nNoll’s actions were unreasonable and violated Shelly’s\\nFourth Amendment rights. Agent Noll’s general interests in\\n\\n IOANE V. NOLL 19\\n\\npreventing destruction of evidence and promoting officer\\nsafety did not justify the scope or manner of the intrusion\\ninto Shelly’s most basic subject of privacy, her naked body.\\nSee York, 324 F.2d at 455; see also Byrd, 629 F.3d at 1141.\\nWe therefore affirm the district court on this issue.\\n\\n 3. Clearly Established\\n\\n The second part of the qualified immunity test requires\\nus to determine whether, at the time of Agent Noll’s actions\\nin June 2006, the law was clearly established. To be clearly\\nestablished, “[t]he contours of the right must be sufficiently\\nclear that a reasonable official would understand that what\\n[she] is doing violates that right.” Anderson v. Creighton,\\n483 U.S. 635, 640 (1987). That is, the right must be\\nestablished “in a more particularized, and hence more\\nrelevant, sense[.]” Id.; Dunn v. Castro, 621 F.3d 1196, 1201\\n(9th Cir. 2010) (“[T]he right allegedly violated must be\\ndefined at the appropriate level of specificity before a court\\ncan determine if it was clearly established.”) (quoting Wilson\\nv. Layne, 526 U.S. 603, 615 (1999)). This high standard is\\nintended to give officers breathing room “to make\\nreasonable but mistaken judgments about open legal\\nquestions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).\\n“[I]t protects all but the plainly incompetent or those who\\nknowingly violate the law.” Id. (quoting Malley v. Briggs,\\n475 U.S. 335, 341 (1986)). While the Supreme Court has\\nrepeatedly admonished this court not to define clearly\\nestablished law at a high level of generality, see, e.g., City &\\nCty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1775–76 (2015), we\\nneed not identify a prior identical action to conclude that the\\nright is clearly established, Anderson, 483 U.S. at 640. We\\nfirst look to binding precedent to determine whether a law\\nwas clearly established. Chappell v. Mandeville, 706 F.3d\\n1052, 1056 (9th Cir. 2013).\\n\\n20 IOANE V. NOLL\\n\\n By 2006, much of our Circuit’s precedent regarding the\\nright to bodily privacy had been established. First, from\\nYork, it was clearly established that an individual’s naked\\nbody is the most basic subject of privacy. 324 F.2d at 455.\\nSecond, from Grummett, it was clearly established that\\ncasual, restricted, and obscured viewing of a prison inmate’s\\nnaked body is constitutionally permitted if it is justified by\\nlegitimate government interests such as prison security\\nneeds. 779 F.2d at 492, 494–95. Finally, from Sepulveda, it\\nwas clearly established that a male parole officer’s\\nintentional viewing of a female parolee providing a urine\\nsample, over the parolee’s objection, is unconstitutional.\\n967 F.2d at 1416.\\n\\n Additionally, it was clearly established by 2006 that an\\nindividual’s Fourth Amendment right against unreasonable\\nsearches is not abrogated by virtue of her presence at the\\nexecution of a search warrant. See Ybarra, 444 U.S. at 91–\\n93. In Ybarra, the Supreme Court held that an officer\\nexecuting a search warrant on a premises must possess a\\nreasonable belief that an individual is armed and dangerous\\nbefore conducting a weapons pat-down of the individual. Id.\\n\\n Taken together, the holdings from York, Grummett,\\nSepulveda, and Ybarra put the unlawfulness of Agent Noll’s\\nconduct beyond debate. See al-Kidd, 563 U.S. at 741 (“We\\ndo not require a case directly on point, but existing precedent\\nmust have placed the statutory or constitutional question\\nbeyond debate”); White v. Lee, 227 F.3d 1214, 1238 (9th Cir.\\n2000) (“[Cl]osely analogous preexisting case law is not\\nrequired to show that a right was clearly established.”).\\n\\n First, unlike the inmates in Grummett or the parolee in\\nSepulveda, Shelly’s privacy interests had not been reduced.\\nThe agents were executing a search warrant at Shelly’s\\nhouse, but Shelly had not been detained. Furthermore,\\n\\n IOANE V. NOLL 21\\n\\nMichael, and not Shelly, was the subject of the investigation.\\nThis makes the intrusion here even more significant than in\\nGrummett or Sepulveda.\\n\\n Second, it is clearly established that such a significant\\nintrusion as occurred here never can be permitted in the\\nabsence of legitimate government interests, which here,\\nplainly were lacking. See Grummett, 779 F.2d at 496;\\nKnights, 534 U.S. at 118–19 (“[T]he reasonableness of a\\nsearch is determined by assessing, on the one hand, the\\ndegree to which it intrudes upon an individual’s privacy and,\\non the other, the degree to which it is needed for the\\npromotion of legitimate governmental interests.”) (internal\\nquotation marks and citation omitted).\\n\\n Finally, if the Constitution prohibits an officer from\\nconducting a weapons pat-down of an individual during\\nexecution of a search warrant in the absence of a reasonable\\nbelief that the individual is armed and dangerous, the\\nintrusion here, for which Agent Noll has articulated no\\nreasonable belief that Shelly was armed and dangerous,\\nclearly was unconstitutional. See Ybarra, 444 U.S. at 91–93.\\nAnd, even if Agent Noll had possessed a reasonable and\\narticulable belief that Shelly was armed and dangerous, it is\\nbeyond debate that Agent Noll initially only would have\\nbeen constitutionally permitted to conduct a pat-down search\\nand not watch Shelly use the bathroom. See id. at 92–93\\n(citing Terry, 392 U.S. at 21–27). Accordingly, Agent Noll’s\\ndecision to monitor Shelly while Shelly used the restroom,\\nwhen Agent Noll clearly was not authorized to conduct a\\nweapons pat down, arguably qualifies as “plainly\\nincompetent.” See al-Kidd, 563 U.S. at 743.\\n\\n In sum, a reasonable officer in Agent Noll’s position\\nwould have known that such a significant intrusion into\\nbodily privacy, in the absence of legitimate government\\n\\n22 IOANE V. NOLL\\n\\njustification, is unlawful. Hope v. Pelzer, 536 U.S. 730, 739–\\n41 (2002) (“[O]fficials can still be on notice that their\\nconduct violates established law even in novel factual\\ncircumstances.”). We therefore conclude that Agent Noll is\\nnot entitled to qualified immunity.\\n\\n AFFIRMED.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4439781/\", \"author_raw\": \"MURGUIA, Circuit Judge:\"}, {\"author\": \"BEA, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"BEA, Circuit Judge, concurring in part and concurring in the\\njudgment:\\n\\n I agree with the majority that this case does not extend\\nBivens to a new context and that the district court did not err\\nin denying Agent Noll’s motion for summary judgment\\nregarding Shelly Ioane’s claim that Agent Noll violated\\nShelly’s clearly established constitutional rights. However,\\nbecause I disagree with the majority’s holding that Agent\\nNoll’s actions violated Shelly’s clearly established right to\\nbodily privacy, I write separately.\\n\\n I\\n\\n A\\n\\n As the majority correctly notes, we engage in a two-part\\ntest when determining whether a government agent is\\nentitled to qualified immunity. Saucier v. Katz, 533 U.S.\\n194, 201 (2001). An officer is entitled to qualified immunity\\nunder this test unless: (1) the facts, construed in the light\\nmost favorable to the plaintiff, demonstrate that the officer’s\\nconduct violated a constitutional right, and (2) that right was\\nclearly established at the time of the asserted violation. Id.\\nBecause this case reaches us on a denial of summary\\njudgment, we must determine whether Agent Noll “would\\n\\n IOANE V. NOLL 23\\n\\nbe entitled to qualified immunity as a matter of law assuming\\nall factual disputes were resolved in [Shelly’s] favor.” Eng\\nv. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009).\\n\\n To be clearly established, “[t]he contours of the right\\nmust be sufficiently clear that a reasonable official would\\nunderstand that what [she] is doing violates that right.”\\nAnderson v. Creighton, 483 U.S. 635, 640 (1987). That is,\\nthe right must be established “in a more particularized, and\\nhence more relevant, sense.” Id.; Dunn v. Castro, 621 F.3d\\n1196, 1201 (9th Cir. 2010) (“[T]he right allegedly violated\\nmust be defined at the appropriate level of specificity before\\na court can determine if it was clearly established.” (internal\\nquotation marks omitted)).\\n\\n This particularized requirement does not mean that there\\nmust be a prior case with identical facts—an officer can still\\nbe on notice that her conduct “violates established law even\\nin novel factual circumstances.” Hope v. Pelzer, 536 U.S.\\n730, 739–41 (2002). “[B]ut existing precedent must have\\nplaced the statutory or constitutional question beyond\\ndebate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). “In\\nother words, immunity protects ‘all but the plainly\\nincompetent or those who knowingly violate the law.’”\\nWhite v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix\\nv. Luna, 136 S. Ct. 305, 308 (2015)). Additionally, even if\\nan officer violates a clearly established right, the officer is\\nentitled to qualified immunity if the officer’s “mistake as to\\nwhat the law requires is reasonable.” Saucier, 533 U.S. at\\n205.\\n\\n B\\n\\n Here, the majority concludes that Agent Noll was not\\nentitled to qualified immunity as a matter of law, in part\\nbecause Agent Noll violated Shelly’s clearly established\\n\\n24 IOANE V. NOLL\\n\\nFourth Amendment right to bodily privacy when Agent Noll\\nsearched Shelly and viewed her naked body during the\\ncourse of executing a search warrant at the Ioanes’ residence.\\nTo reach that conclusion, it is necessary for the majority to\\nhold that a female law enforcement officer violates a clearly\\nestablished right to bodily privacy when she unreasonably\\nviews the naked body of a female suspect.\\n\\n The majority cites three of our prior cases regarding\\nbodily privacy to support the existence of such a clearly\\nestablished right. But the cases cited by the majority are\\ndistinguishable from the instant case in significant ways.\\nMost problematically, none of the cases cited by the majority\\nstate that there is a constitutional right to bodily privacy that\\nis violated by same-sex observation.\\n\\n For instance, in York v. Story, 324 F.2d 450, 451–53 (9th\\nCir. 1963), where we first announced the right to bodily\\nprivacy, a female victim was brought to the police station\\nafter an altercation. Male officers told her that they needed\\nto photograph her naked body to preserve evidence of\\nbruising. Id. The woman repeatedly objected, stated that\\nshe did not want to be photographed, and contended that\\nthere was no evidence of bruising to document. Id. The\\nofficers photographed the woman anyway and distributed\\nthe photos throughout the department. Id. We held that the\\nofficers’ actions violated the woman’s right to bodily\\nprivacy. Id.\\n\\n But York does not support a clearly established right that\\nwas violated in this case for a number of reasons. First, the\\nprivacy violation in York was much more severe because the\\nphotographs were disseminated to other officers. Here, the\\nobservation was in a one-on-one setting. Second, even the\\nYork court recognized that the fact that the officers were\\nmale and the victim was female was significant, stating: “We\\n\\n IOANE V. NOLL 25\\n\\ncannot conceive of a more basic subject of privacy than the\\nnaked body. The desire to shield one’s unclothed figured\\nfrom view of strangers, and particularly strangers of the\\nopposite sex, is impelled by elementary self-respect and\\npersonal dignity.” Id. at 455 (emphasis added).\\n\\n Next, the majority cites Grummett v. Rushen, 779 F.2d\\n491 (9th Cir. 1985). In Grummett, male inmates sued the\\ndepartment of corrections for allowing female guards to\\nobserve them in the showers and while using the restroom,\\nclaiming a violation of their right to privacy. Id. at 492–93.\\nThis court held that there was no violation of the right to\\nbodily privacy because the inmates had a reduced privacy\\ninterest, the female guards observed the inmates naked only\\nfrom a distance, and the department’s policies were, on the\\nwhole, reasonable. Id. at 494–96.\\n\\n Again, Grummett does not support a clearly established\\nright that was violated in this case. First, the plaintiffs in\\nGrummett exclusively challenged cross-sex observations—\\nthe plaintiffs did not even attempt to argue that male guards’\\nobservations of naked male inmates violated the inmates’\\nright to bodily privacy. As a result, this court’s analysis was\\nentirely framed in terms of whether cross-sex observations\\nand searches violated the right to bodily privacy. Second,\\nthe Grummett court found no constitutional violation even\\nthough the observations were cross-sex. Although\\nGrummett stands for the proposition that some right to\\nbodily privacy exists, it is difficult to see how Grummett\\ncould have created a clearly established constitutional right\\nto be free from same-sex observation.\\n\\n Finally, the majority cites Sepulveda v. Ramirez,\\n967 F.2d 1413, 1416 (9th Cir. 1992). In Sepulveda, we held\\nthat a male probation officer violated a female probationer’s\\nright to bodily privacy when the male probation officer\\n\\n26 IOANE V. NOLL\\n\\nobserved the female probationer urinating in a bathroom stall\\nduring a urinalysis test. 967 F.2d at 1415. This is, without\\ndoubt, the most factually analogous case cited by the\\nmajority.\\n\\n And yet, several factors indicate that Agent Noll’s\\nconduct was not clearly proscribed by this court’s opinion in\\nSepulveda. First, and most obviously, our ruling in\\nSepulveda hinged on the fact that the probation officer was\\nof the opposite sex, and all of the cases the Sepulveda court\\ncited involved observation by members of the opposite sex.\\nId. Indeed, the Sepulveda court itself cited York for the\\nproposition that “[t]he desire to shield one’s unclothed\\nfigured from view of strangers, and particularly strangers of\\nthe opposite sex, is impelled by elementary self-respect and\\npersonal dignity.” Id. at 1415 n.5 (quoting York, 324 F.2d\\nat 455). Thus, it is unclear how Sepulveda can be read to\\ncreate a clearly established constitutional right to be free\\nfrom naked observation by members of the same sex.\\n\\n Second, in concluding that the probation officer’s\\nconduct was not “reasonable,” the Court relied on the fact\\nthat his conduct violated department of corrections policies.\\nId. at 1416. Here, by contrast, Agent Noll’s uncontradicted\\ndeclaration establishes that her conduct comported with IRS\\npolicy. Again, at a minimum, this fact provides a basis to\\nconclude that Agent Noll’s mistake as to whether she was\\nviolating the right established by Sepulveda was reasonable.\\n\\n Finally, Sepulveda did not occur in the context of the\\nexecution of a search warrant. The majority argues that this\\nmeans Shelly likely had broader rights than the probationer\\nin Sepulveda. But that argument ignores the factual context\\nrelevant to determining whether Sepulveda sufficiently\\ndefined the contours of the right at issue. In particular,\\nSepulveda contains no discussion regarding how to weigh\\n\\n IOANE V. NOLL 27\\n\\nthe right to bodily privacy against the interests of officer\\nsafety or the preservation of evidence.\\n\\n The majority dismisses many of these concerns without\\nserious examination. Most notably, the majority asserts (in\\na footnote) that, although every bodily privacy case this\\ncircuit has decided involved cross-sex observation, “gender\\nwas not central” to the analysis in any of those cases. See\\nMaj. Op. at 15 n.5. Thus, the majority concludes, “[the fact\\nt]hat Agent Noll and Shelly both are women does not change\\nthat Agent Noll violated Shelly’s privacy rights.” See id.\\n\\n Gender is not central?\\n\\n It is impossible to square this conclusion with our\\nprecedent. Every bodily privacy case cited by the majority\\ninvolved cross-sex observation and every case noted that the\\ncross-sex nature of the observation was a significant part of\\nthe court’s analysis. No case cited by the majority discusses\\nwhether same-sex observation is subject to the same sort of\\nanalysis or scrutiny. In fact, language from York and\\nSepulveda—and the result from Grummett—strongly\\nsuggest that same-sex observations are not subject to the\\nsame sort of scrutiny as cross-sex observations.\\n\\n The majority is likely correct that Agent Noll’s actions\\nwere unreasonable, and Agent Noll may have violated\\nShelly’s constitutional right to bodily privacy during the\\nsearch. But the existence of a constitutional violation alone\\nis insufficient to deny qualified immunity—we must find\\nthat the right at issue was “clearly established.” Our\\nprecedent at the time of the alleged violation in this case did\\nnot put the issue of whether same-sex observation violates\\nthe right to bodily privacy “beyond debate.” See al-Kidd,\\n563 U.S. at 741.\\n\\n28 IOANE V. NOLL\\n\\n The majority could have used this case to clarify the law\\nregarding the right to bodily privacy and announced that the\\nright applied in both same-sex and cross-sex situations alike.\\nPerhaps that is the correct result. But the majority cannot, in\\none fell swoop, both announce for the first time that the\\nscope of the bodily privacy right includes same-sex\\nobservations and, at the same time, hold that the right was\\nclearly established at the time of the violation. 1\\n\\n II\\n\\n Nonetheless, I concur in the majority’s ultimate\\nconclusion that the district court did not err in denying Agent\\nNoll’s motion for summary judgment. Drawing all factual\\ninferences in favor of Shelly, as we must, Agent Noll’s\\nactions violated Shelly’s Fourth Amendment rights under\\nthe Supreme Court’s decision in Ybarra v. Illinois, 444 U.S.\\n85 (1979).\\n\\n In Ybarra, police received a tip that a bartender was\\nlikely to be dealing heroin at his bar on a particular night. Id.\\nat 87–90. The police used that tip to obtain a search warrant\\nfor the bar and the bartender. Id. When the police arrived at\\nthe bar, they announced that they were executing a search\\nwarrant and then stated that they were going to perform a\\nweapons pat-down on all of the patrons of the bar who were\\n\\n\\n 1\\n The majority is defining the right of bodily privacy at a higher level\\nof generality—same and cross-sex observation of nudity—than the level\\nof generality here involved: same-sex observation. This is precisely the\\nsort of judicial decision-making for which the Supreme Court has\\nrepeatedly chastised us. See Kisela v. Hughes, 138 S. Ct. 1148, 1152\\n(2018) (“This Court has ‘repeatedly told courts—and the Ninth Circuit\\nin particular—not to define clearly established law at a high level of\\ngenerality.’” (internal quotation marks omitted)).\\n\\n IOANE V. NOLL 29\\n\\npresent. Id. During that weapons pat-down, an officer found\\nheroin on a patron of the bar. Id.\\n\\n During the ensuing criminal case, the patron moved to\\nsuppress the evidence found in the pat-down search, arguing\\nthat the officer had no probable cause to search him. Id. The\\nstate courts held that the search was permissible because a\\nstate statute authorized officers executing a search warrant\\nto detain and search anyone at the premises. Id.\\n\\n The Supreme Court reversed, holding that the search was\\nunconstitutional. The Supreme Court held that the officers\\nneeded individualized probable cause as to the patron in\\norder to conduct an evidence search of his person and that\\nthe search warrant for the premises combined with the\\npatron’s presence at the premises was insufficient. Id. at 90–\\n92. Additionally, the Court held that any weapons frisk\\nneeded to be supported by a “reasonable belief” that the\\npatron was armed and dangerous. Id. at 92–94. Finally, the\\nCourt rejected the state’s argument that such searches were\\nnecessary as part of drug enforcement because of the ease\\nwith which evidence of a drug crime could be concealed,\\npassed from person to person, and disposed of. Id. at 94–96.\\n\\n In short, Ybarra stands for the proposition that a search\\nwarrant for a particular premises does not give the officers\\nexecuting the warrant the right to search individuals who are\\npresent, but who the officers do not have independent\\nprobable cause to search. Here, Shelly was not the subject\\nof the investigation and the search warrant did not authorize\\na search of her person, only of the premises. As a result,\\nunder Ybarra, any search of Shelly needed to be supported\\nby independent probable cause or, in the case of a weapons\\nfrisk, a reasonable belief that she was armed and dangerous.\\n\\n30 IOANE V. NOLL\\n\\n Neither of those conditions was met in this case. Agent\\nNoll had no individualized probable cause to search Shelly.\\nConsequently, there was no basis to conduct an evidence\\nsearch of Shelly’s person. Additionally, Agent Noll likely\\nlacked any reasonable belief that Shelly was armed and\\ndangerous. Although Agent Noll knew there were firearms\\nin the house, those firearms did not belong to Shelly and\\nthere was no other basis on which to conclude that Shelly\\nwas armed and dangerous. Regardless, even if Agent Noll\\nhad a reasonable basis to believe Shelly was armed and\\ndangerous, her actions in this case plainly exceeded the\\nlimits of the sort of weapons pat-down authorized by the\\nSupreme Court in Terry v. Ohio, 392 U.S. 1 (1968).\\n\\n As a result, I would hold that Agent Noll’s actions\\nviolated Shelly’s Fourth Amendment rights as clearly\\nestablished in Ybarra.\\n\\n III\\n\\n In conclusion, Agent Noll’s actions did not violate\\nShelly’s clearly established right to bodily privacy.\\nHowever, drawing factual inferences in Shelly’s favor,\\nAgent Noll’s actions in this case likely violated Shelly’s\\nconstitutional rights under Ybarra. On that basis, I would\\nhold that the district court was correct to deny Agent Noll’s\\nmotion for summary judgment. As a result, I CONCUR in\\nthe judgment of the majority opinion.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4439781/\", \"author_raw\": \"BEA, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"CARLOS T BEA"},"judge2":{"kind":"string","value":"MARY H MURGUIA"},"judge3":{"kind":"string","value":"DONALD W MOLLOY"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4662528/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Shelly Ioane v. Jean Noll\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nSHELLY J. IOANE, No. 16-16089\n Plaintiff-Appellee,\n D.C. No.\n v. 1:07-cv-00620-\n AWI-EPG\nJEFF HODGES; MICHELLE CASAREZ,\nFederal Officer; BRIAN APPLEGATE,\nFederal Officer; KENT SPJUTE, ORDER AND\nFederal Officer, AMENDED\n Defendants, OPINION\n\n and\n\nJEAN NOLL,\n Defendant-Appellant.\n\n\n\n Appeal from the United States District Court\n for the Eastern District of California\n Anthony W. Ishii, District Judge, Presiding\n\n Argued and Submitted April 13, 2018\n Pasadena, California\n\n Filed September 10, 2018\n Amended September 19, 2019\n\n2 IOANE V. NOLL\n\n Before: Carlos T. Bea and Mary H. Murguia, Circuit\n Judges, and Donald W. Molloy, * District Judge.\n\n Order;\n Opinion by Judge Murguia;\n Partial Concurrence and Partial Dissent by Judge Bea\n\n\n SUMMARY **\n\n\n Bivens\n\n The panel amended the opinion and concurrence filed on\nSeptember 10, 2018, and affirmed the district court’s order\ndenying Internal Revenue Service Agent Jean Noll’s motion\nfor summary judgment based on her alleged qualified\nimmunity in a Bivens v. Six Unknown Named Agents of Fed.\nBureau of Narcotics, 403 U.S. 388 (1971), suit alleging that\nAgent Noll violated plaintiff’s Fourth Amendment right to\nbodily privacy during the lawful execution of a search\nwarrant at plaintiff’s home in 2006.\n\n The panel first held that plaintiff could proceed with her\nBivens suit against Agent Noll. Applying the test in Ziglar\nv. Abbasi, 137 S. Ct. 1843 (2017), the panel held that this\ncase was similar to Bivens and therefore did not present a\n“new context” where plaintiff’s claim was that a federal\n\n\n *\n The Honorable Donald W. Molloy, United States District Judge\nfor the District of Montana, sitting by designation.\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\n IOANE V. NOLL 3\n\nagent conducted a warrantless search of her person in\nviolation of her Fourth Amendment right to bodily privacy.\n\n The panel turned to the issue of qualified immunity and\nits first prong of reasonableness. The panel held that the\nscope of the intrusion into plaintiff’s bodily privacy here was\nsignificant, and weighed in favor of a determination of\nunreasonableness. In addition, the manner of Agent Noll’s\nintrusion weighed in favor of concluding that the intrusion\nwas unreasonable. Further, the panel held that none of the\njustifications Agent Noll offered for initiating the search\nwere borne out by the facts. The panel affirmed the district\ncourt on this issue.\n\n The second part of the qualified immunity test required\na determination whether, at the time of Agent Noll’s actions\nin June 2006, the law was clearly established. The panel held\nthat by 2006, much of the Circuit’s precedent regarding the\nright to bodily privacy had been established. The panel held\nthat a reasonable officer in Agent Noll’s position would\nhave known that such a significant intrusion into bodily\nprivacy, in the absence of legitimate government\njustification, was unlawful. The panel concluded that the\nunlawfulness of Agent Noll’s conduct was beyond debate,\nand Agent Noll was not entitled to qualified immunity.\n\n Judge Bea concurred in part and concurred in the\njudgment. Judge Bea agreed with the majority that the case\ndid not extend Bivens to a new context, and that the district\ncourt did not err in denying Agent Noll’s motion for\nsummary judgment regarding plaintiff’s claim that Agent\nNoll violated plaintiff’s clearly established constitutional\nrights. Judge Bea would hold that Agent Noll’s actions\nviolated plaintiff’s Fourth Amendment rights as clearly\nestablished in Ybarra v. Illinois, 444 U.S. 85 (1979). Judge\n\n4 IOANE V. NOLL\n\nBea disagreed with the majority’s holding that Agent Noll’s\nactions violated plaintiff’s clearly established right to bodily\nprivacy.\n\n\n COUNSEL\n\nGretchen M. Wolfinger (argued), Jonathan S. Cohen, and\nGilbert S. Rothenberg, Attorneys; Caroline D. Ciraolo,\nPrincipal Deputy Assistant Attorney General; Diana L.\nErbsen, Deputy Assistant Attorney General; Tax\nDivision/Appellate Section, United States Department of\nJustice, Washington, D.C.; for Defendant-Appellant.\n\nAriel Beverly (argued) and Norvik Azarian (argued),\nCertified Law Students; Paula M. Mitchell, Supervisor,\nLoyola Law School; E. Martin Estrada, Munger Tolles &\nOlson LLP, Los Angeles, California; for Plaintiff-Appellee.\n\n IOANE V. NOLL 5\n\n ORDER\n\n The opinion and concurrence filed on September 10,\n2018, and appearing at 903 F.3d 929, is hereby amended. An\namended opinion and concurrence is filed herewith.\n\n The parties are hereby granted leave to file a petition for\nrehearing and/or suggestion for rehearing en banc, pursuant\nto FRAP 40 and G.O. 5.3(a).\n\n\n\n OPINION\n\nMURGUIA, Circuit Judge:\n\n Plaintiff Shelly Ioane filed a Bivens suit against Internal\nRevenue Service (“IRS”) Agent Jean Noll. Shelly alleged\nthat Agent Noll violated her Fourth Amendment right to\nbodily privacy when, during the lawful execution of a search\nwarrant at her home, Agent Noll escorted Shelly to the\nbathroom and monitored Shelly while she relieved herself.\nAgent Noll moved for summary judgment, claiming that she\nwas entitled to qualified immunity. The district court denied\nAgent Noll’s motion, and she appeals. 1\n\n\n 1\n At summary judgment, plaintiffs included Shelly and her husband,\nMichael Ioane, Sr. Plaintiffs initially pursued several causes of action\nagainst the United States and the Federal agents who executed the search\nwarrant on the Ioane residence. However, the only claims remaining at\nthe summary judgment stage were for excessive force and invasion of\nbodily privacy in violation of their Fourth Amendment rights. The Ioanes\nclaimed that the Federal agents, including Agent Noll, used excessive\nforce when the Federal agents pointed guns at the Ioanes’ heads, and that\nAgent Noll invaded Shelly’s bodily privacy when Agent Noll entered the\nbathroom with Shelly and monitored Shelly while she relieved herself.\n\n6 IOANE V. NOLL\n\n We have jurisdiction over this interlocutory appeal,\nMitchell v. Forsyth, 472 U.S. 511, 530 (1985), and we\naffirm.\n\n Background\n\n In 2006, Michael Ioane, Sr. (“Michael”) was under\ninvestigation for criminal tax fraud and conspiracy. At the\ntime, Agent Noll was a Supervisory Special Agent for the\nIRS Criminal Investigation Division, and she was asked to\nassist in executing a search warrant as part of the\ninvestigation regarding Michael. Prior to executing the\nsearch warrant, agents learned that the Ioanes had registered\nweapons and that these weapons likely would be at their\nhome. The search warrant authorized the IRS agents to\nsearch the Ioane residence for, among other things, records,\ncomputers, computer-related equipment, and computer\nstorage devices.\n\n On June 8, 2006, agents from the IRS Criminal\nInvestigation Division, including Agent Noll, arrived at the\nIoane residence to conduct the search. Only Michael and\nShelly were home at the time. The IRS agents informed\nMichael and Shelly that they could stay on the premises if\nthey cooperated with the agents conducting the search.\nHowever, the agents informed the Ioanes that if they chose\nto leave the premises, they would not be allowed to return.\nBoth Ioanes stayed on the premises, and sat in the kitchen\nwhile the agents conducted the search.\n\n\n\n\nThe district court granted summary judgment for Agent Noll on\nplaintiffs’ excessive force claim, but denied Agent Noll summary\njudgment on Shelly’s invasion of bodily privacy claim.\n\n IOANE V. NOLL 7\n\n At some point early in the search, Michael needed to use\nthe bathroom. A male agent escorted Michael to the\nbathroom and conducted a quick search of the bathroom\narea—opening a couple of drawers and looking in the\nshower—before exiting and closing the door behind him.\nThe male officer stood outside the closed bathroom door\nwhile Michael relieved himself.\n\n Then, about a half an hour into the search, Shelly told the\nagents that she needed to use the bathroom. Agent Noll\nescorted Shelly to the bathroom, and when she stepped\ninside and started to close the door, Agent Noll told Shelly\nthat she had to come inside, too. Shelly asked Agent Noll to\nwait outside, but Agent Noll resisted her plea. Agent Noll\ntold Shelly to remove her clothing so that she could make\nsure Shelly did not have anything hidden on her person.\nWhen Shelly objected, Agent Noll explained that she needed\nto make sure Shelly did not hide or destroy anything, and\nthat this was standard procedure. Shelly, who was wearing a\nlong sundress, pulled up her dress so Agent Noll could see\nthat she was not hiding anything. According to Shelly, Agent\nNoll made Shelly hold up her dress while she relieved\nherself, using one hand to hold up her dress and the other to\npull her underwear down. Agent Noll faced Shelly while\nShelly used the bathroom, and when Shelly was finished,\nAgent Noll escorted her back to the kitchen.\n\n Analysis\n\n On appeal, Agent Noll claims that the district court erred\nwhen it determined that she is not entitled to qualified\nimmunity from Shelly’s invasion of bodily privacy claim.\nAgent Noll contends that her actions were objectively\nreasonable, and therefore did not violate Shelly’s Fourth\nAmendment rights. Further, Agent Noll argues that even if\nher actions were not reasonable, the law was not so clearly\n\n8 IOANE V. NOLL\n\nestablished in 2006 that a reasonable officer in her position\nwould have known that her actions were unlawful.\n\n We review a district court’s legal conclusion that an\nofficial is not entitled to qualified immunity de novo. Eng v.\nCooley, 552 F.3d 1062, 1067 (9th Cir. 2009) (“Our\ninterlocutory jurisdiction to review a denial of qualified\nimmunity is limited exclusively to questions of law, which\nwe review de novo.”).\n\n Qualified immunity balances “the need to hold public\nofficials accountable when they exercise power\nirresponsibly and the need to shield officials from\nharassment, distraction, and liability when they perform\ntheir duties reasonably.” Pearson v. Callahan, 555 U.S. 223,\n231 (2009). To balance these competing interests, we\nperform a two-part test. Saucier v. Katz, 533 U.S. 194, 201\n(2001); Crowe v. Cty. of San Diego, 608 F.3d 406, 427 (9th\nCir. 2010). An officer is entitled to qualified immunity under\nthis test unless (1) the facts, construed in the light most\nfavorable to the plaintiff, demonstrate that the officer’s\nconduct violated a constitutional right, and (2) the right was\nclearly established at the time of the asserted violation. Karl\nv. City of Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir.\n2012); Saucier, 533 U.S. at 201. If there is no constitutional\nviolation, the inquiry ends and the officer is entitled to\nqualified immunity. Saucier, 533 U.S. at 201. On the other\nhand, if we determine that the alleged facts establish a\nconstitutional violation, we proceed to part two of the test to\ndetermine whether the right at issue was clearly established.\nId. While we have discretion to begin our analysis with\neither part of the test, Pearson, 555 U.S. at 236, it is\nnevertheless beneficial to begin with the first part of the test\nbecause it “promotes the development of constitutional\nprecedent and is especially valuable with respect to\n\n IOANE V. NOLL 9\n\nquestions that do not frequently arise in cases in which a\nqualified immunity defense is unavailable.” Plumhoff v.\nRickard, 572 U.S. 765, 774 (2014) (quoting Pearson,\n555 U.S. at 236).\n\n 1. Bivens Claim\n\n Before reaching the issue of qualified immunity, the first\nquestion we must address is whether Shelly may bring a\nBivens suit against Agent Noll. Hernandez v. Mesa, 137 S.\nCt. 2003, 2006 (2017) (whether Bivens applies “is\n‘antecedent’ to the other questions presented”) (quoting\nWood v. Moss, 572 U.S. 744, 757 (2014)).\n\n In 1971, the Supreme Court recognized for the first time\nan implied right of action against federal officers for\nconstitutional violations. Bivens v. Six Unknown Named\nAgents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In\nBivens, the Court held that plaintiff Webster Bivens was\nentitled to sue federal agents for damages arising out of an\nunlawful arrest and search, in violation of his Fourth\nAmendment rights. Id. at 389–90.\n\n Following Bivens, however, the Supreme Court has\nrepeatedly refused to recognize an implied damages remedy\nagainst federal officials. See Rodriguez v. Swartz, 899 F.3d\n719, 737 (9th Cir. 2018) (collecting cases). Recently, the\nCourt “made clear that expanding the Bivens remedy is now\na ‘disfavored’ judicial activity.” Ziglar v. Abbasi, 137 S. Ct.\n1843, 1857 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662,\n675 (2009)). “This [trend] is in accord with the Court’s\nobservation that it has ‘consistently refused to extend Bivens\nto any new context or new category of defendants.’” Id.\n(quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68\n(2001)).\n\n10 IOANE V. NOLL\n\n In Abbasi, the Supreme Court laid out a two-step test for\ndetermining when a Bivens claim should be recognized.\n“[T]he first question a court must ask . . . is whether the\nclaim arises in a new Bivens context[.]” Id. at 1864. A case\npresents a new context if it “is different in a meaningful way\nfrom previous Bivens cases decided by th[e Supreme\nCourt].” Id. Abbasi outlined the following non-exhaustive\n“list of differences that are meaningful enough to make a\ngiven context a new one”:\n\n A case might differ in a meaningful way\n because of [1] the rank of the officers\n involved; [2] the constitutional right at issue;\n [3] the generality or specificity of the official\n action; [4] the extent of judicial guidance as\n to how an officer should respond to the\n problem or emergency to be confronted;\n [5] the statutory or other legal mandate under\n which the officer was operating; [6] the risk\n of disruptive intrusion by the Judiciary into\n the functioning of other branches; or [7] the\n presence of potential special factors that\n previous Bivens cases did not consider.\n\nId. at 1859–60.\n\n If the case presents a new Bivens context, then the court\nproceeds to step two. At step two, a court may extend Bivens\nin a new context only if two conditions are met. First, “the\nplaintiff must not have any other adequate alternative\nremedy.” Rodriguez, 899 F.3d at 738. Second, “there cannot\nbe any ‘special factors’ that lead [the court] to believe that\nCongress, instead of the courts, should be the one to\nauthorize a suit for money damages.” Id. While the Supreme\nCourt has yet to define the term, “special factors,” it has\n\n IOANE V. NOLL 11\n\nexplained that “the inquiry must concentrate on whether the\nJudiciary is well suited, absent congressional action or\ninstruction, to consider and weigh the costs and benefits of\nallowing a damages action to proceed.” Abbasi, 137 S. Ct.\nat 1857–58. Therefore, “to be a ‘special factor counselling\nhesitation,’ a factor must cause a court to hesitate before\nanswering that question in the affirmative.” Id. at 1858.\n\n Here, a review of the Abbasi factors in the first step of\nthe Bivens analysis demonstrates that this case is similar to\nBivens and therefore does not present a “new context.” Both\ncases concern an individual’s Fourth Amendment right to be\nfree from unreasonable searches and seizures. In Bivens,\nfederal agents allegedly searched Bivens’s home and his\nperson (by subjecting him to a visual strip search), without\nprobable cause or a warrant. See 403 U.S. at 389. Likewise,\nShelly’s claim here is that a federal agent conducted a\nwarrantless search of her person in violation of her Fourth\nAmendment right to bodily privacy.\n\n There is no difference between the two cases with\nrespect to the rank of the officers involved, the generality or\nspecificity of the official action at issue, or the legal mandate\nunder which the officers were operating. 2 Further, the extent\nof judicial guidance as to how Agent Noll should have\nresponded to the problem was well established. 3\n\n 2\n The fact that Agent Noll searched the Ioane residence pursuant to\na lawful search warrant, unlike in Bivens where the agents were wholly\nwithout any warrant, is of no significance. The only Fourth Amendment\nclaim at issue here is Shelly’s. With respect to Shelly, Agent Noll\nconducted a warrantless search of her person.\n 3\n This Abbasi factor—“the extent of judicial guidance as to how an\nofficer should respond to the problem or emergency to be confronted,”\nAbbasi, 137 S. Ct. at 1860—is analogous to the question in a qualified\n\n12 IOANE V. NOLL\n\nRecognizing a Bivens action in this closely analogous case\nalso does not result in any intrusion by the judiciary into the\nfunctioning of other branches. See Bivens, 403 U.S. at 407\n(Harlan, J., concurring) (“[T]he judiciary has a particular\nresponsibility to assure the vindication of constitutional\ninterests such as those embraced by the Fourth\nAmendment.”). Nor does this case implicate any special\nfactors not considered previously that counsel against\nrecognizing a Bivens remedy.\n\n Rather, as was the case in Bivens, there is no alternative\nremedy for a person in Shelly’s position—“it is damages or\nnothing.” Id. at 410 (Harlan, J., concurring); cf. Abbasi,\n137 S. Ct. at 1865 (“[T]he existence of alternative remedies\nusually precludes a court from authorizing a Bivens\naction.”). Accordingly, Shelly may proceed with her Bivens\nsuit against Agent Noll. 4\n\n 2. Reasonableness\n\n We now turn to the issue of qualified immunity and\nbegin with its first prong. While the Ninth Circuit never has\narticulated a standard for when an officer’s intentional\n\nimmunity analysis of whether the law was “clearly established” at the\ntime of the officer’s actions such that a “reasonable official would\nunderstand that what [she] is doing violates” a person’s constitutional\nright. Anderson v. Creighton, 483 U.S. 635, 640 (1987). While Judge\nBea disagrees with the majority that Shelly’s right to bodily privacy from\na same-sex strip search was clearly established at the time (as explained\nin his separate concurrence), we all agree at a minimum that Shelly’s\nright to be free from an unreasonable search was clearly established\nunder Ybarra v. Illinois, 444 U.S. 85 (1979).\n 4\n Because we conclude that Shelly’s Bivens claim does not present\na “new context,” we need not consider the second part of the Bivens\nanalysis.\n\n IOANE V. NOLL 13\n\nviewing of an individual’s naked body is constitutionally\npermissible under the Fourth Amendment, “[t]he touchstone\nof the Fourth Amendment is reasonableness.” Florida v.\nJimeno, 500 U.S. 248, 250 (1991) (citing Katz v. United\nStates, 389 U.S. 347, 360 (1967)). Determining the\nreasonableness of a particular search involves balancing the\ndegree to which the search intrudes upon an individual’s\nprivacy against the degree to which the search is needed to\nfurther legitimate governmental interests. United States v.\nKnights, 534 U.S. 112, 118–19 (2001). The required factors\nto consider are: “(1) the scope of the particular intrusion,\n(2) the manner in which it is conducted, (3) the justification\nfor initiating it, and (4) the place in which it is conducted.”\nByrd v. Maricopa Cty. Sheriff’s Dep’t, 629 F.3d 1135, 1141\n(9th Cir. 2011) (citing Bell v. Wolfish, 441 U.S. 520, 559\n(1979) (internal quotation marks omitted)).\n\n Three cases from our Circuit inform the scope and\nmanner of the intrusion here. We first recognized the right\nto bodily privacy in 1963. In York v. Story, we held that a\nplaintiff had alleged sufficient facts to state an invasion of\nbodily privacy claim under § 1983 when she alleged that\nthree police officers took and distributed nude photos of her\nwhen she came to the station to report that she had been\nassaulted. 324 F.2d 450, 452, 455–56 (9th Cir. 1963).\nAccording to the allegations in the complaint, the officers\nhad insisted that it was necessary to take photos of the\nplaintiff for her case, and directed her to undress in a room\nof the police station despite the plaintiff’s objections and\ninsistence that she did not have bruises that required her to\nbe photographed in the nude. Id.at 452. Recognizing that the\n“naked body” is the most “basic subject of privacy,” we\nconcluded that the woman had alleged a claim that the\nofficers’ actions violated her privacy rights under the\nFourteenth Amendment due process clause. Id. at 455–56.\n\n14 IOANE V. NOLL\n\n In 1985, we recognized that the right to bodily privacy\nalso applies to inmates. In Grummett v. Rushen, male prison\ninmates filed a class action § 1983 lawsuit alleging that the\nprison’s practice of allowing female correction officers to\nview male inmates showering, disrobing, and using toilet\nfacilities violated their privacy rights. 779 F.2d 491, 492–93\n(9th Cir. 1985). Although we held that the prisoners had a\nright to privacy in their naked body, id. at 494, we concluded\nthat the officials had not violated the inmates’ privacy rights\nbecause the officials’ view of the inmates was “restricted by\ndistance,” “casual in nature,” and justified by security needs,\nid. at 495–96. We concluded that the prison authorities had\n“devised the least intrusive means to serve the state’s\ninterests in prison security” and had not violated the inmates’\nrights to bodily privacy. Id. at 494 (citing Wooley v.\nMaynard, 430 U.S. 705, 716 (1976)).\n\n Finally, in 1992, we held that a parole officer violated a\nfemale parolee’s right to bodily privacy when he entered the\nbathroom stall while the parolee was providing a urine\nsample. Sepulveda v. Ramirez, 967 F.2d 1413, 1415–16 (9th\nCir. 1992). Distinguishing the facts in Grummett, we\ndetermined that the parole officer’s view of the parolee was\n“neither obscured nor distant,” and “far more degrading to\n[the parolee] than the situation faced by the inmates in\nGrummett.” Id. at 1416. Relying on Grummett and\nrecognizing that parolee rights are “even more extensive\nthan those of inmates,” we concluded that the parole officer\nhad violated the parolee’s bodily privacy rights. Id. at 1416.\n\n From York, Grummett, and Sepulveda, we conclude that\nthe scope of the intrusion into Shelly’s bodily privacy here\nwas significant. Agent Noll intruded on Shelly’s most basic\nsubject of privacy, her naked body. See York, 324 F.2d at\n455. Moreover, unlike the prison inmates in Grummett and\n\n IOANE V. NOLL 15\n\nthe parolee in Sepulveda, Shelly’s privacy interests had not\nbeen reduced. Just as in Sepulveda, where we recognized\nthat parolees have, “at a minimum, the same right to bodily\nprivacy as a prison inmate,” 967 F.2d at 1416, Shelly, who\nhad not been detained and was not herself the subject of a\nsearch warrant, had more right to bodily privacy than a\nparolee. See Samson v. California, 547 U.S. 843, 850 (2006)\n(explaining that parolees are on the “continuum” of state-\nimposed punishments with fewer expectations of privacy\nthan probationers because parole is more akin to\nimprisonment). Therefore, the scope of Agent Noll’s\nintrusion into Shelly’s bodily privacy right was significant\nand weighs in favor of a determination of unreasonableness. 5\n\n\n\n\n 5\n Although York, Grummett, and Sepulveda all involved searches by\nmembers of the opposite sex, gender was not central to the conclusion of\nwhether the intrusion at issue was unreasonable. Indeed, York,\nGrummett, and Sepulveda recognize that the naked body is the most\nbasic subject of privacy, and an arbitrary intrusion by any government\nactor is unconstitutional. See York, 324 F.2d at 455 (“The desire to shield\none’s unclothed figure from view of strangers, and particularly strangers\nof the opposite sex, is impelled by elementary self-respect and personal\ndignity.”); see also Grummett, 779 F.2d at 495 (finding no violation even\nwhere prison search conducted by member of the opposite sex);\nSepulveda, 967 F.2d at 1416 (emphasizing the up-close, unobscured\nprivacy intrusion rather than the fact that the parole officer and parolee\nwere of opposite genders); Byrd, 629 F.3d at 1150 (N.R. Smith, J.,\ndissenting in part) (“In evaluating the scope of a search, the searching\nofficer’s gender is irrelevant.”). The concurrence takes a different view\nregarding these cases, but it appears from these cases that gender is a\nfactor for evaluating the severity of the intrusion rather than the mark of\nthe intrusion itself. Indeed, as with any Fourth Amendment analysis, the\nquestion is balancing the nature of the intrusion against the degree to\nwhich the search is needed to further legitimate governmental interests.\nKnights, 534 U.S. at 118–19. That Agent Noll and Shelly both are\n\n16 IOANE V. NOLL\n\n Additionally, unlike the casual, obscured, and restricted\nmanner of observation by the prison officials in Grummett,\nAgent Noll stood facing Shelly in the Ioanes’ home\nbathroom while Shelly relieved herself. Agent Noll’s\nintrusion was like the parole officer’s intrusion in Sepulveda,\nwhich we concluded was unreasonable. 6 See Sepulveda,\n967 F.2d at 1415–16; see also York 324 F.2d at 455.\nTherefore, the manner of Agent Noll’s intrusion weighs in\nfavor of concluding that the intrusion was unreasonable. See\nByrd, 629 F.3d at 1142–43 (weighing the Bell factors to\ndetermine whether the intrusion was reasonable).\n\n Furthermore, none of the justifications Agent Noll\noffered for initiating the search are borne out by the facts.\nFirst, and most notably, the Ioanes were not detained during\nexecution of the search warrant. Despite the fact that the\nFourth Amendment permits limited detention of individuals\non the premises while officers execute a search warrant, see\nMichigan v. Summers, 452 U.S. 692, 703–05 (1981), the\nagents informed the Ioanes they were free to go. 7 Yet Agent\n\nwomen does not change that Agent Noll violated Shelly’s privacy rights.\nSee York, 324 F.2d at 455.\n 6\n Agent Noll contends that she does not recall escorting Shelly to the\nbathroom, but that such a practice is “standard procedure.” However,\nnowhere in the record is this procedure memorialized, and it appears the\nother agents did not follow this “standard procedure” when Michael used\nthe bathroom.\n 7\n In Summers, the Supreme Court held that it was reasonable, for\nFourth Amendment purposes, to detain individuals while officers\nexecute a lawful warrant on the premises. 452 U.S. at 703–05. This\nlimited detention is justified by preventing flight, loss of incriminating\nevidence, and harm to occupants and officers. Id. at 702–03. However,\nthe Supreme Court has not held that these government interests authorize\nthe type of bodily privacy intrusion that took place here.\n\n IOANE V. NOLL 17\n\nNoll contends that her intrusion into Shelly’s bodily privacy\nwas justified because of the inherent risk that Shelly might\ndestroy evidence. However, the fact that the Ioanes were not\ndetained belies Agent Noll’s contention that she and the\nother agents were worried about Shelly destroying “floppy\ndisks, smart cards and PC cards . . . [hidden] on her person\nunder her dress.” If the agents legitimately feared that Shelly\nmight destroy evidence in the bathroom, they would not have\npermitted Shelly to leave the premises where she could have\ndestroyed of the evidence elsewhere, and they would have\nbeen constitutionally permitted to do so. See id.\n\n Second, Agent Noll argues that monitoring Shelly was\nnecessary to ensure that Shelly did not have anything\ndangerous concealed in her clothing. Yet the search warrant\nauthorized only the search of the premises, not the\nindividuals on the premises. See Ybarra v. Illinois, 444 U.S.\n85, 91–92 (1979) (rejecting the argument that individuals’\nFourth Amendment rights are abrogated simply by virtue of\nthe fact that they are on the premises where officers are\nexecuting a lawful search warrant). Furthermore, Agent Noll\ndoes not argue that she had a reasonable belief that Shelly\nwas armed except for asserting that the agents had found\nother weapons on the premises. And, even if Agent Noll\npossessed an objectively reasonable belief that Shelly was\narmed and dangerous, this belief only would have justified a\npat-down for weapons, not the intrusion into bodily privacy\nthat occurred here. See id. at 92–93 (holding that an officer\nmust possess a reasonable belief that an individual is armed\nand dangerous before conducting a weapons pat-down, even\nif the individual is on the premises where officers are\nexecuting a search warrant) (citing Adams v. Williams,\n407 U.S. 143, 146 (1972); Terry v. Ohio, 392 U.S. 1, 21–27\n(1968)). Indeed, the agents had monitored Shelly in the\nkitchen for approximately 30 minutes before Shelly asked to\n\n18 IOANE V. NOLL\n\nuse the bathroom, and nowhere in the record does it reflect\nthat the officers conducted a pat-down search of Shelly or\nMichael.\n\n Third, Agent Noll asserts that other safety concerns\njustified monitoring Shelly while she used the bathroom\nbecause the bathroom was not secure, and Shelly could have\ngained access to the rest of the house through a second door\nin the bathroom, putting officers or herself at risk. However,\nby the time Shelly needed to use the bathroom, other agents\nalready had checked the bathroom for weapons.\nAdditionally, Agent Noll offers no explanation why\nwatching Shelly use the bathroom was the only way to abate\nthe risk that Shelly might flee, given that other officers might\nhave been recruited to stand outside the bathroom’s second\ndoor. See Grummett, 779 F.3d at 494 (concluding that the\nprison had not violated inmates’ rights when the prison had\ndevised the least intrusive means to serve the state security\ninterests). Indeed, the agents permitted Michael, who was\nthe subject of the investigation, to use the bathroom while a\nmale agent stood outside the door. In sum, the justifications\nAgent Noll offers for initiating the search weigh in favor of\na determination of unreasonableness.\n\n Finally, the search was conducted in the Ioane’s home\nbathroom. The law recognizes heightened privacy interests\nin the home, which arguably makes this intrusion more\negregious, especially when Shelly herself was not the subject\nof the search. See Kyllo v. United States, 533 U.S. 27, 31\n(2001). The place of the search, therefore, also weighs in\nfavor of unreasonableness.\n\n Weighing the scope, manner, justification, and place of\nthe search, a reasonable jury could conclude that Agent\nNoll’s actions were unreasonable and violated Shelly’s\nFourth Amendment rights. Agent Noll’s general interests in\n\n IOANE V. NOLL 19\n\npreventing destruction of evidence and promoting officer\nsafety did not justify the scope or manner of the intrusion\ninto Shelly’s most basic subject of privacy, her naked body.\nSee York, 324 F.2d at 455; see also Byrd, 629 F.3d at 1141.\nWe therefore affirm the district court on this issue.\n\n 3. Clearly Established\n\n The second part of the qualified immunity test requires\nus to determine whether, at the time of Agent Noll’s actions\nin June 2006, the law was clearly established. To be clearly\nestablished, “[t]he contours of the right must be sufficiently\nclear that a reasonable official would understand that what\n[she] is doing violates that right.” Anderson v. Creighton,\n483 U.S. 635, 640 (1987). That is, the right must be\nestablished “in a more particularized, and hence more\nrelevant, sense[.]” Id.; Dunn v. Castro, 621 F.3d 1196, 1201\n(9th Cir. 2010) (“[T]he right allegedly violated must be\ndefined at the appropriate level of specificity before a court\ncan determine if it was clearly established.”) (quoting Wilson\nv. Layne, 526 U.S. 603, 615 (1999)). This high standard is\nintended to give officers breathing room “to make\nreasonable but mistaken judgments about open legal\nquestions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).\n“[I]t protects all but the plainly incompetent or those who\nknowingly violate the law.” Id. (quoting Malley v. Briggs,\n475 U.S. 335, 341 (1986)). While the Supreme Court has\nrepeatedly admonished this court not to define clearly\nestablished law at a high level of generality, see, e.g., City &\nCty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1775–76 (2015), we\nneed not identify a prior identical action to conclude that the\nright is clearly established, Anderson, 483 U.S. at 640. We\nfirst look to binding precedent to determine whether a law\nwas clearly established. Chappell v. Mandeville, 706 F.3d\n1052, 1056 (9th Cir. 2013).\n\n20 IOANE V. NOLL\n\n By 2006, much of our Circuit’s precedent regarding the\nright to bodily privacy had been established. First, from\nYork, it was clearly established that an individual’s naked\nbody is the most basic subject of privacy. 324 F.2d at 455.\nSecond, from Grummett, it was clearly established that\ncasual, restricted, and obscured viewing of a prison inmate’s\nnaked body is constitutionally permitted if it is justified by\nlegitimate government interests such as prison security\nneeds. 779 F.2d at 492, 494–95. Finally, from Sepulveda, it\nwas clearly established that a male parole officer’s\nintentional viewing of a female parolee providing a urine\nsample, over the parolee’s objection, is unconstitutional.\n967 F.2d at 1416.\n\n Additionally, it was clearly established by 2006 that an\nindividual’s Fourth Amendment right against unreasonable\nsearches is not abrogated by virtue of her presence at the\nexecution of a search warrant. See Ybarra, 444 U.S. at 91–\n93. In Ybarra, the Supreme Court held that an officer\nexecuting a search warrant on a premises must possess a\nreasonable belief that an individual is armed and dangerous\nbefore conducting a weapons pat-down of the individual. Id.\n\n Taken together, the holdings from York, Grummett,\nSepulveda, and Ybarra put the unlawfulness of Agent Noll’s\nconduct beyond debate. See al-Kidd, 563 U.S. at 741 (“We\ndo not require a case directly on point, but existing precedent\nmust have placed the statutory or constitutional question\nbeyond debate”); White v. Lee, 227 F.3d 1214, 1238 (9th Cir.\n2000) (“[Cl]osely analogous preexisting case law is not\nrequired to show that a right was clearly established.”).\n\n First, unlike the inmates in Grummett or the parolee in\nSepulveda, Shelly’s privacy interests had not been reduced.\nThe agents were executing a search warrant at Shelly’s\nhouse, but Shelly had not been detained. Furthermore,\n\n IOANE V. NOLL 21\n\nMichael, and not Shelly, was the subject of the investigation.\nThis makes the intrusion here even more significant than in\nGrummett or Sepulveda.\n\n Second, it is clearly established that such a significant\nintrusion as occurred here never can be permitted in the\nabsence of legitimate government interests, which here,\nplainly were lacking. See Grummett, 779 F.2d at 496;\nKnights, 534 U.S. at 118–19 (“[T]he reasonableness of a\nsearch is determined by assessing, on the one hand, the\ndegree to which it intrudes upon an individual’s privacy and,\non the other, the degree to which it is needed for the\npromotion of legitimate governmental interests.”) (internal\nquotation marks and citation omitted).\n\n Finally, if the Constitution prohibits an officer from\nconducting a weapons pat-down of an individual during\nexecution of a search warrant in the absence of a reasonable\nbelief that the individual is armed and dangerous, the\nintrusion here, for which Agent Noll has articulated no\nreasonable belief that Shelly was armed and dangerous,\nclearly was unconstitutional. See Ybarra, 444 U.S. at 91–93.\nAnd, even if Agent Noll had possessed a reasonable and\narticulable belief that Shelly was armed and dangerous, it is\nbeyond debate that Agent Noll initially only would have\nbeen constitutionally permitted to conduct a pat-down search\nand not watch Shelly use the bathroom. See id. at 92–93\n(citing Terry, 392 U.S. at 21–27). Accordingly, Agent Noll’s\ndecision to monitor Shelly while Shelly used the restroom,\nwhen Agent Noll clearly was not authorized to conduct a\nweapons pat down, arguably qualifies as “plainly\nincompetent.” See al-Kidd, 563 U.S. at 743.\n\n In sum, a reasonable officer in Agent Noll’s position\nwould have known that such a significant intrusion into\nbodily privacy, in the absence of legitimate government\n\n22 IOANE V. NOLL\n\njustification, is unlawful. Hope v. Pelzer, 536 U.S. 730, 739–\n41 (2002) (“[O]fficials can still be on notice that their\nconduct violates established law even in novel factual\ncircumstances.”). We therefore conclude that Agent Noll is\nnot entitled to qualified immunity.\n\n AFFIRMED.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Shelly Ioane v. Jean Noll\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nSHELLY J. IOANE, No. 16-16089\\n Plaintiff-Appellee,\\n D.C. No.\\n v. 1:07-cv-00620-\\n AWI-EPG\\nJEFF HODGES; MICHELLE CASAREZ,\\nFederal Officer; BRIAN APPLEGATE,\\nFederal Officer; KENT SPJUTE, ORDER AND\\nFederal Officer, AMENDED\\n Defendants, OPINION\\n\\n and\\n\\nJEAN NOLL,\\n Defendant-Appellant.\\n\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of California\\n Anthony W. Ishii, District Judge, Presiding\\n\\n Argued and Submitted April 13, 2018\\n Pasadena, California\\n\\n Filed September 10, 2018\\n Amended September 19, 2019\\n\\n2 IOANE V. NOLL\\n\\n Before: Carlos T. Bea and Mary H. Murguia, Circuit\\n Judges, and Donald W. Molloy, * District Judge.\\n\\n Order;\\n Opinion by Judge Murguia;\\n Partial Concurrence and Partial Dissent by Judge Bea\\n\\n\\n SUMMARY **\\n\\n\\n Bivens\\n\\n The panel amended the opinion and concurrence filed on\\nSeptember 10, 2018, and affirmed the district court’s order\\ndenying Internal Revenue Service Agent Jean Noll’s motion\\nfor summary judgment based on her alleged qualified\\nimmunity in a Bivens v. Six Unknown Named Agents of Fed.\\nBureau of Narcotics, 403 U.S. 388 (1971), suit alleging that\\nAgent Noll violated plaintiff’s Fourth Amendment right to\\nbodily privacy during the lawful execution of a search\\nwarrant at plaintiff’s home in 2006.\\n\\n The panel first held that plaintiff could proceed with her\\nBivens suit against Agent Noll. Applying the test in Ziglar\\nv. Abbasi, 137 S. Ct. 1843 (2017), the panel held that this\\ncase was similar to Bivens and therefore did not present a\\n“new context” where plaintiff’s claim was that a federal\\n\\n\\n *\\n The Honorable Donald W. Molloy, United States District Judge\\nfor the District of Montana, sitting by designation.\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\n IOANE V. NOLL 3\\n\\nagent conducted a warrantless search of her person in\\nviolation of her Fourth Amendment right to bodily privacy.\\n\\n The panel turned to the issue of qualified immunity and\\nits first prong of reasonableness. The panel held that the\\nscope of the intrusion into plaintiff’s bodily privacy here was\\nsignificant, and weighed in favor of a determination of\\nunreasonableness. In addition, the manner of Agent Noll’s\\nintrusion weighed in favor of concluding that the intrusion\\nwas unreasonable. Further, the panel held that none of the\\njustifications Agent Noll offered for initiating the search\\nwere borne out by the facts. The panel affirmed the district\\ncourt on this issue.\\n\\n The second part of the qualified immunity test required\\na determination whether, at the time of Agent Noll’s actions\\nin June 2006, the law was clearly established. The panel held\\nthat by 2006, much of the Circuit’s precedent regarding the\\nright to bodily privacy had been established. The panel held\\nthat a reasonable officer in Agent Noll’s position would\\nhave known that such a significant intrusion into bodily\\nprivacy, in the absence of legitimate government\\njustification, was unlawful. The panel concluded that the\\nunlawfulness of Agent Noll’s conduct was beyond debate,\\nand Agent Noll was not entitled to qualified immunity.\\n\\n Judge Bea concurred in part and concurred in the\\njudgment. Judge Bea agreed with the majority that the case\\ndid not extend Bivens to a new context, and that the district\\ncourt did not err in denying Agent Noll’s motion for\\nsummary judgment regarding plaintiff’s claim that Agent\\nNoll violated plaintiff’s clearly established constitutional\\nrights. Judge Bea would hold that Agent Noll’s actions\\nviolated plaintiff’s Fourth Amendment rights as clearly\\nestablished in Ybarra v. Illinois, 444 U.S. 85 (1979). Judge\\n\\n4 IOANE V. NOLL\\n\\nBea disagreed with the majority’s holding that Agent Noll’s\\nactions violated plaintiff’s clearly established right to bodily\\nprivacy.\\n\\n\\n COUNSEL\\n\\nGretchen M. Wolfinger (argued), Jonathan S. Cohen, and\\nGilbert S. Rothenberg, Attorneys; Caroline D. Ciraolo,\\nPrincipal Deputy Assistant Attorney General; Diana L.\\nErbsen, Deputy Assistant Attorney General; Tax\\nDivision/Appellate Section, United States Department of\\nJustice, Washington, D.C.; for Defendant-Appellant.\\n\\nAriel Beverly (argued) and Norvik Azarian (argued),\\nCertified Law Students; Paula M. Mitchell, Supervisor,\\nLoyola Law School; E. Martin Estrada, Munger Tolles &\\nOlson LLP, Los Angeles, California; for Plaintiff-Appellee.\\n\\n IOANE V. NOLL 5\\n\\n ORDER\\n\\n The opinion and concurrence filed on September 10,\\n2018, and appearing at 903 F.3d 929, is hereby amended. An\\namended opinion and concurrence is filed herewith.\\n\\n The parties are hereby granted leave to file a petition for\\nrehearing and/or suggestion for rehearing en banc, pursuant\\nto FRAP 40 and G.O. 5.3(a).\\n\\n\\n\\n OPINION\\n\\nMURGUIA, Circuit Judge:\\n\\n Plaintiff Shelly Ioane filed a Bivens suit against Internal\\nRevenue Service (“IRS”) Agent Jean Noll. Shelly alleged\\nthat Agent Noll violated her Fourth Amendment right to\\nbodily privacy when, during the lawful execution of a search\\nwarrant at her home, Agent Noll escorted Shelly to the\\nbathroom and monitored Shelly while she relieved herself.\\nAgent Noll moved for summary judgment, claiming that she\\nwas entitled to qualified immunity. The district court denied\\nAgent Noll’s motion, and she appeals. 1\\n\\n\\n 1\\n At summary judgment, plaintiffs included Shelly and her husband,\\nMichael Ioane, Sr. Plaintiffs initially pursued several causes of action\\nagainst the United States and the Federal agents who executed the search\\nwarrant on the Ioane residence. However, the only claims remaining at\\nthe summary judgment stage were for excessive force and invasion of\\nbodily privacy in violation of their Fourth Amendment rights. The Ioanes\\nclaimed that the Federal agents, including Agent Noll, used excessive\\nforce when the Federal agents pointed guns at the Ioanes’ heads, and that\\nAgent Noll invaded Shelly’s bodily privacy when Agent Noll entered the\\nbathroom with Shelly and monitored Shelly while she relieved herself.\\n\\n6 IOANE V. NOLL\\n\\n We have jurisdiction over this interlocutory appeal,\\nMitchell v. Forsyth, 472 U.S. 511, 530 (1985), and we\\naffirm.\\n\\n Background\\n\\n In 2006, Michael Ioane, Sr. (“Michael”) was under\\ninvestigation for criminal tax fraud and conspiracy. At the\\ntime, Agent Noll was a Supervisory Special Agent for the\\nIRS Criminal Investigation Division, and she was asked to\\nassist in executing a search warrant as part of the\\ninvestigation regarding Michael. Prior to executing the\\nsearch warrant, agents learned that the Ioanes had registered\\nweapons and that these weapons likely would be at their\\nhome. The search warrant authorized the IRS agents to\\nsearch the Ioane residence for, among other things, records,\\ncomputers, computer-related equipment, and computer\\nstorage devices.\\n\\n On June 8, 2006, agents from the IRS Criminal\\nInvestigation Division, including Agent Noll, arrived at the\\nIoane residence to conduct the search. Only Michael and\\nShelly were home at the time. The IRS agents informed\\nMichael and Shelly that they could stay on the premises if\\nthey cooperated with the agents conducting the search.\\nHowever, the agents informed the Ioanes that if they chose\\nto leave the premises, they would not be allowed to return.\\nBoth Ioanes stayed on the premises, and sat in the kitchen\\nwhile the agents conducted the search.\\n\\n\\n\\n\\nThe district court granted summary judgment for Agent Noll on\\nplaintiffs’ excessive force claim, but denied Agent Noll summary\\njudgment on Shelly’s invasion of bodily privacy claim.\\n\\n IOANE V. NOLL 7\\n\\n At some point early in the search, Michael needed to use\\nthe bathroom. A male agent escorted Michael to the\\nbathroom and conducted a quick search of the bathroom\\narea—opening a couple of drawers and looking in the\\nshower—before exiting and closing the door behind him.\\nThe male officer stood outside the closed bathroom door\\nwhile Michael relieved himself.\\n\\n Then, about a half an hour into the search, Shelly told the\\nagents that she needed to use the bathroom. Agent Noll\\nescorted Shelly to the bathroom, and when she stepped\\ninside and started to close the door, Agent Noll told Shelly\\nthat she had to come inside, too. Shelly asked Agent Noll to\\nwait outside, but Agent Noll resisted her plea. Agent Noll\\ntold Shelly to remove her clothing so that she could make\\nsure Shelly did not have anything hidden on her person.\\nWhen Shelly objected, Agent Noll explained that she needed\\nto make sure Shelly did not hide or destroy anything, and\\nthat this was standard procedure. Shelly, who was wearing a\\nlong sundress, pulled up her dress so Agent Noll could see\\nthat she was not hiding anything. According to Shelly, Agent\\nNoll made Shelly hold up her dress while she relieved\\nherself, using one hand to hold up her dress and the other to\\npull her underwear down. Agent Noll faced Shelly while\\nShelly used the bathroom, and when Shelly was finished,\\nAgent Noll escorted her back to the kitchen.\\n\\n Analysis\\n\\n On appeal, Agent Noll claims that the district court erred\\nwhen it determined that she is not entitled to qualified\\nimmunity from Shelly’s invasion of bodily privacy claim.\\nAgent Noll contends that her actions were objectively\\nreasonable, and therefore did not violate Shelly’s Fourth\\nAmendment rights. Further, Agent Noll argues that even if\\nher actions were not reasonable, the law was not so clearly\\n\\n8 IOANE V. NOLL\\n\\nestablished in 2006 that a reasonable officer in her position\\nwould have known that her actions were unlawful.\\n\\n We review a district court’s legal conclusion that an\\nofficial is not entitled to qualified immunity de novo. Eng v.\\nCooley, 552 F.3d 1062, 1067 (9th Cir. 2009) (“Our\\ninterlocutory jurisdiction to review a denial of qualified\\nimmunity is limited exclusively to questions of law, which\\nwe review de novo.”).\\n\\n Qualified immunity balances “the need to hold public\\nofficials accountable when they exercise power\\nirresponsibly and the need to shield officials from\\nharassment, distraction, and liability when they perform\\ntheir duties reasonably.” Pearson v. Callahan, 555 U.S. 223,\\n231 (2009). To balance these competing interests, we\\nperform a two-part test. Saucier v. Katz, 533 U.S. 194, 201\\n(2001); Crowe v. Cty. of San Diego, 608 F.3d 406, 427 (9th\\nCir. 2010). An officer is entitled to qualified immunity under\\nthis test unless (1) the facts, construed in the light most\\nfavorable to the plaintiff, demonstrate that the officer’s\\nconduct violated a constitutional right, and (2) the right was\\nclearly established at the time of the asserted violation. Karl\\nv. City of Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir.\\n2012); Saucier, 533 U.S. at 201. If there is no constitutional\\nviolation, the inquiry ends and the officer is entitled to\\nqualified immunity. Saucier, 533 U.S. at 201. On the other\\nhand, if we determine that the alleged facts establish a\\nconstitutional violation, we proceed to part two of the test to\\ndetermine whether the right at issue was clearly established.\\nId. While we have discretion to begin our analysis with\\neither part of the test, Pearson, 555 U.S. at 236, it is\\nnevertheless beneficial to begin with the first part of the test\\nbecause it “promotes the development of constitutional\\nprecedent and is especially valuable with respect to\\n\\n IOANE V. NOLL 9\\n\\nquestions that do not frequently arise in cases in which a\\nqualified immunity defense is unavailable.” Plumhoff v.\\nRickard, 572 U.S. 765, 774 (2014) (quoting Pearson,\\n555 U.S. at 236).\\n\\n 1. Bivens Claim\\n\\n Before reaching the issue of qualified immunity, the first\\nquestion we must address is whether Shelly may bring a\\nBivens suit against Agent Noll. Hernandez v. Mesa, 137 S.\\nCt. 2003, 2006 (2017) (whether Bivens applies “is\\n‘antecedent’ to the other questions presented”) (quoting\\nWood v. Moss, 572 U.S. 744, 757 (2014)).\\n\\n In 1971, the Supreme Court recognized for the first time\\nan implied right of action against federal officers for\\nconstitutional violations. Bivens v. Six Unknown Named\\nAgents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). In\\nBivens, the Court held that plaintiff Webster Bivens was\\nentitled to sue federal agents for damages arising out of an\\nunlawful arrest and search, in violation of his Fourth\\nAmendment rights. Id. at 389–90.\\n\\n Following Bivens, however, the Supreme Court has\\nrepeatedly refused to recognize an implied damages remedy\\nagainst federal officials. See Rodriguez v. Swartz, 899 F.3d\\n719, 737 (9th Cir. 2018) (collecting cases). Recently, the\\nCourt “made clear that expanding the Bivens remedy is now\\na ‘disfavored’ judicial activity.” Ziglar v. Abbasi, 137 S. Ct.\\n1843, 1857 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662,\\n675 (2009)). “This [trend] is in accord with the Court’s\\nobservation that it has ‘consistently refused to extend Bivens\\nto any new context or new category of defendants.’” Id.\\n(quoting Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68\\n(2001)).\\n\\n10 IOANE V. NOLL\\n\\n In Abbasi, the Supreme Court laid out a two-step test for\\ndetermining when a Bivens claim should be recognized.\\n“[T]he first question a court must ask . . . is whether the\\nclaim arises in a new Bivens context[.]” Id. at 1864. A case\\npresents a new context if it “is different in a meaningful way\\nfrom previous Bivens cases decided by th[e Supreme\\nCourt].” Id. Abbasi outlined the following non-exhaustive\\n“list of differences that are meaningful enough to make a\\ngiven context a new one”:\\n\\n A case might differ in a meaningful way\\n because of [1] the rank of the officers\\n involved; [2] the constitutional right at issue;\\n [3] the generality or specificity of the official\\n action; [4] the extent of judicial guidance as\\n to how an officer should respond to the\\n problem or emergency to be confronted;\\n [5] the statutory or other legal mandate under\\n which the officer was operating; [6] the risk\\n of disruptive intrusion by the Judiciary into\\n the functioning of other branches; or [7] the\\n presence of potential special factors that\\n previous Bivens cases did not consider.\\n\\nId. at 1859–60.\\n\\n If the case presents a new Bivens context, then the court\\nproceeds to step two. At step two, a court may extend Bivens\\nin a new context only if two conditions are met. First, “the\\nplaintiff must not have any other adequate alternative\\nremedy.” Rodriguez, 899 F.3d at 738. Second, “there cannot\\nbe any ‘special factors’ that lead [the court] to believe that\\nCongress, instead of the courts, should be the one to\\nauthorize a suit for money damages.” Id. While the Supreme\\nCourt has yet to define the term, “special factors,” it has\\n\\n IOANE V. NOLL 11\\n\\nexplained that “the inquiry must concentrate on whether the\\nJudiciary is well suited, absent congressional action or\\ninstruction, to consider and weigh the costs and benefits of\\nallowing a damages action to proceed.” Abbasi, 137 S. Ct.\\nat 1857–58. Therefore, “to be a ‘special factor counselling\\nhesitation,’ a factor must cause a court to hesitate before\\nanswering that question in the affirmative.” Id. at 1858.\\n\\n Here, a review of the Abbasi factors in the first step of\\nthe Bivens analysis demonstrates that this case is similar to\\nBivens and therefore does not present a “new context.” Both\\ncases concern an individual’s Fourth Amendment right to be\\nfree from unreasonable searches and seizures. In Bivens,\\nfederal agents allegedly searched Bivens’s home and his\\nperson (by subjecting him to a visual strip search), without\\nprobable cause or a warrant. See 403 U.S. at 389. Likewise,\\nShelly’s claim here is that a federal agent conducted a\\nwarrantless search of her person in violation of her Fourth\\nAmendment right to bodily privacy.\\n\\n There is no difference between the two cases with\\nrespect to the rank of the officers involved, the generality or\\nspecificity of the official action at issue, or the legal mandate\\nunder which the officers were operating. 2 Further, the extent\\nof judicial guidance as to how Agent Noll should have\\nresponded to the problem was well established. 3\\n\\n 2\\n The fact that Agent Noll searched the Ioane residence pursuant to\\na lawful search warrant, unlike in Bivens where the agents were wholly\\nwithout any warrant, is of no significance. The only Fourth Amendment\\nclaim at issue here is Shelly’s. With respect to Shelly, Agent Noll\\nconducted a warrantless search of her person.\\n 3\\n This Abbasi factor—“the extent of judicial guidance as to how an\\nofficer should respond to the problem or emergency to be confronted,”\\nAbbasi, 137 S. Ct. at 1860—is analogous to the question in a qualified\\n\\n12 IOANE V. NOLL\\n\\nRecognizing a Bivens action in this closely analogous case\\nalso does not result in any intrusion by the judiciary into the\\nfunctioning of other branches. See Bivens, 403 U.S. at 407\\n(Harlan, J., concurring) (“[T]he judiciary has a particular\\nresponsibility to assure the vindication of constitutional\\ninterests such as those embraced by the Fourth\\nAmendment.”). Nor does this case implicate any special\\nfactors not considered previously that counsel against\\nrecognizing a Bivens remedy.\\n\\n Rather, as was the case in Bivens, there is no alternative\\nremedy for a person in Shelly’s position—“it is damages or\\nnothing.” Id. at 410 (Harlan, J., concurring); cf. Abbasi,\\n137 S. Ct. at 1865 (“[T]he existence of alternative remedies\\nusually precludes a court from authorizing a Bivens\\naction.”). Accordingly, Shelly may proceed with her Bivens\\nsuit against Agent Noll. 4\\n\\n 2. Reasonableness\\n\\n We now turn to the issue of qualified immunity and\\nbegin with its first prong. While the Ninth Circuit never has\\narticulated a standard for when an officer’s intentional\\n\\nimmunity analysis of whether the law was “clearly established” at the\\ntime of the officer’s actions such that a “reasonable official would\\nunderstand that what [she] is doing violates” a person’s constitutional\\nright. Anderson v. Creighton, 483 U.S. 635, 640 (1987). While Judge\\nBea disagrees with the majority that Shelly’s right to bodily privacy from\\na same-sex strip search was clearly established at the time (as explained\\nin his separate concurrence), we all agree at a minimum that Shelly’s\\nright to be free from an unreasonable search was clearly established\\nunder Ybarra v. Illinois, 444 U.S. 85 (1979).\\n 4\\n Because we conclude that Shelly’s Bivens claim does not present\\na “new context,” we need not consider the second part of the Bivens\\nanalysis.\\n\\n IOANE V. NOLL 13\\n\\nviewing of an individual’s naked body is constitutionally\\npermissible under the Fourth Amendment, “[t]he touchstone\\nof the Fourth Amendment is reasonableness.” Florida v.\\nJimeno, 500 U.S. 248, 250 (1991) (citing Katz v. United\\nStates, 389 U.S. 347, 360 (1967)). Determining the\\nreasonableness of a particular search involves balancing the\\ndegree to which the search intrudes upon an individual’s\\nprivacy against the degree to which the search is needed to\\nfurther legitimate governmental interests. United States v.\\nKnights, 534 U.S. 112, 118–19 (2001). The required factors\\nto consider are: “(1) the scope of the particular intrusion,\\n(2) the manner in which it is conducted, (3) the justification\\nfor initiating it, and (4) the place in which it is conducted.”\\nByrd v. Maricopa Cty. Sheriff’s Dep’t, 629 F.3d 1135, 1141\\n(9th Cir. 2011) (citing Bell v. Wolfish, 441 U.S. 520, 559\\n(1979) (internal quotation marks omitted)).\\n\\n Three cases from our Circuit inform the scope and\\nmanner of the intrusion here. We first recognized the right\\nto bodily privacy in 1963. In York v. Story, we held that a\\nplaintiff had alleged sufficient facts to state an invasion of\\nbodily privacy claim under § 1983 when she alleged that\\nthree police officers took and distributed nude photos of her\\nwhen she came to the station to report that she had been\\nassaulted. 324 F.2d 450, 452, 455–56 (9th Cir. 1963).\\nAccording to the allegations in the complaint, the officers\\nhad insisted that it was necessary to take photos of the\\nplaintiff for her case, and directed her to undress in a room\\nof the police station despite the plaintiff’s objections and\\ninsistence that she did not have bruises that required her to\\nbe photographed in the nude. Id.at 452. Recognizing that the\\n“naked body” is the most “basic subject of privacy,” we\\nconcluded that the woman had alleged a claim that the\\nofficers’ actions violated her privacy rights under the\\nFourteenth Amendment due process clause. Id. at 455–56.\\n\\n14 IOANE V. NOLL\\n\\n In 1985, we recognized that the right to bodily privacy\\nalso applies to inmates. In Grummett v. Rushen, male prison\\ninmates filed a class action § 1983 lawsuit alleging that the\\nprison’s practice of allowing female correction officers to\\nview male inmates showering, disrobing, and using toilet\\nfacilities violated their privacy rights. 779 F.2d 491, 492–93\\n(9th Cir. 1985). Although we held that the prisoners had a\\nright to privacy in their naked body, id. at 494, we concluded\\nthat the officials had not violated the inmates’ privacy rights\\nbecause the officials’ view of the inmates was “restricted by\\ndistance,” “casual in nature,” and justified by security needs,\\nid. at 495–96. We concluded that the prison authorities had\\n“devised the least intrusive means to serve the state’s\\ninterests in prison security” and had not violated the inmates’\\nrights to bodily privacy. Id. at 494 (citing Wooley v.\\nMaynard, 430 U.S. 705, 716 (1976)).\\n\\n Finally, in 1992, we held that a parole officer violated a\\nfemale parolee’s right to bodily privacy when he entered the\\nbathroom stall while the parolee was providing a urine\\nsample. Sepulveda v. Ramirez, 967 F.2d 1413, 1415–16 (9th\\nCir. 1992). Distinguishing the facts in Grummett, we\\ndetermined that the parole officer’s view of the parolee was\\n“neither obscured nor distant,” and “far more degrading to\\n[the parolee] than the situation faced by the inmates in\\nGrummett.” Id. at 1416. Relying on Grummett and\\nrecognizing that parolee rights are “even more extensive\\nthan those of inmates,” we concluded that the parole officer\\nhad violated the parolee’s bodily privacy rights. Id. at 1416.\\n\\n From York, Grummett, and Sepulveda, we conclude that\\nthe scope of the intrusion into Shelly’s bodily privacy here\\nwas significant. Agent Noll intruded on Shelly’s most basic\\nsubject of privacy, her naked body. See York, 324 F.2d at\\n455. Moreover, unlike the prison inmates in Grummett and\\n\\n IOANE V. NOLL 15\\n\\nthe parolee in Sepulveda, Shelly’s privacy interests had not\\nbeen reduced. Just as in Sepulveda, where we recognized\\nthat parolees have, “at a minimum, the same right to bodily\\nprivacy as a prison inmate,” 967 F.2d at 1416, Shelly, who\\nhad not been detained and was not herself the subject of a\\nsearch warrant, had more right to bodily privacy than a\\nparolee. See Samson v. California, 547 U.S. 843, 850 (2006)\\n(explaining that parolees are on the “continuum” of state-\\nimposed punishments with fewer expectations of privacy\\nthan probationers because parole is more akin to\\nimprisonment). Therefore, the scope of Agent Noll’s\\nintrusion into Shelly’s bodily privacy right was significant\\nand weighs in favor of a determination of unreasonableness. 5\\n\\n\\n\\n\\n 5\\n Although York, Grummett, and Sepulveda all involved searches by\\nmembers of the opposite sex, gender was not central to the conclusion of\\nwhether the intrusion at issue was unreasonable. Indeed, York,\\nGrummett, and Sepulveda recognize that the naked body is the most\\nbasic subject of privacy, and an arbitrary intrusion by any government\\nactor is unconstitutional. See York, 324 F.2d at 455 (“The desire to shield\\none’s unclothed figure from view of strangers, and particularly strangers\\nof the opposite sex, is impelled by elementary self-respect and personal\\ndignity.”); see also Grummett, 779 F.2d at 495 (finding no violation even\\nwhere prison search conducted by member of the opposite sex);\\nSepulveda, 967 F.2d at 1416 (emphasizing the up-close, unobscured\\nprivacy intrusion rather than the fact that the parole officer and parolee\\nwere of opposite genders); Byrd, 629 F.3d at 1150 (N.R. Smith, J.,\\ndissenting in part) (“In evaluating the scope of a search, the searching\\nofficer’s gender is irrelevant.”). The concurrence takes a different view\\nregarding these cases, but it appears from these cases that gender is a\\nfactor for evaluating the severity of the intrusion rather than the mark of\\nthe intrusion itself. Indeed, as with any Fourth Amendment analysis, the\\nquestion is balancing the nature of the intrusion against the degree to\\nwhich the search is needed to further legitimate governmental interests.\\nKnights, 534 U.S. at 118–19. That Agent Noll and Shelly both are\\n\\n16 IOANE V. NOLL\\n\\n Additionally, unlike the casual, obscured, and restricted\\nmanner of observation by the prison officials in Grummett,\\nAgent Noll stood facing Shelly in the Ioanes’ home\\nbathroom while Shelly relieved herself. Agent Noll’s\\nintrusion was like the parole officer’s intrusion in Sepulveda,\\nwhich we concluded was unreasonable. 6 See Sepulveda,\\n967 F.2d at 1415–16; see also York 324 F.2d at 455.\\nTherefore, the manner of Agent Noll’s intrusion weighs in\\nfavor of concluding that the intrusion was unreasonable. See\\nByrd, 629 F.3d at 1142–43 (weighing the Bell factors to\\ndetermine whether the intrusion was reasonable).\\n\\n Furthermore, none of the justifications Agent Noll\\noffered for initiating the search are borne out by the facts.\\nFirst, and most notably, the Ioanes were not detained during\\nexecution of the search warrant. Despite the fact that the\\nFourth Amendment permits limited detention of individuals\\non the premises while officers execute a search warrant, see\\nMichigan v. Summers, 452 U.S. 692, 703–05 (1981), the\\nagents informed the Ioanes they were free to go. 7 Yet Agent\\n\\nwomen does not change that Agent Noll violated Shelly’s privacy rights.\\nSee York, 324 F.2d at 455.\\n 6\\n Agent Noll contends that she does not recall escorting Shelly to the\\nbathroom, but that such a practice is “standard procedure.” However,\\nnowhere in the record is this procedure memorialized, and it appears the\\nother agents did not follow this “standard procedure” when Michael used\\nthe bathroom.\\n 7\\n In Summers, the Supreme Court held that it was reasonable, for\\nFourth Amendment purposes, to detain individuals while officers\\nexecute a lawful warrant on the premises. 452 U.S. at 703–05. This\\nlimited detention is justified by preventing flight, loss of incriminating\\nevidence, and harm to occupants and officers. Id. at 702–03. However,\\nthe Supreme Court has not held that these government interests authorize\\nthe type of bodily privacy intrusion that took place here.\\n\\n IOANE V. NOLL 17\\n\\nNoll contends that her intrusion into Shelly’s bodily privacy\\nwas justified because of the inherent risk that Shelly might\\ndestroy evidence. However, the fact that the Ioanes were not\\ndetained belies Agent Noll’s contention that she and the\\nother agents were worried about Shelly destroying “floppy\\ndisks, smart cards and PC cards . . . [hidden] on her person\\nunder her dress.” If the agents legitimately feared that Shelly\\nmight destroy evidence in the bathroom, they would not have\\npermitted Shelly to leave the premises where she could have\\ndestroyed of the evidence elsewhere, and they would have\\nbeen constitutionally permitted to do so. See id.\\n\\n Second, Agent Noll argues that monitoring Shelly was\\nnecessary to ensure that Shelly did not have anything\\ndangerous concealed in her clothing. Yet the search warrant\\nauthorized only the search of the premises, not the\\nindividuals on the premises. See Ybarra v. Illinois, 444 U.S.\\n85, 91–92 (1979) (rejecting the argument that individuals’\\nFourth Amendment rights are abrogated simply by virtue of\\nthe fact that they are on the premises where officers are\\nexecuting a lawful search warrant). Furthermore, Agent Noll\\ndoes not argue that she had a reasonable belief that Shelly\\nwas armed except for asserting that the agents had found\\nother weapons on the premises. And, even if Agent Noll\\npossessed an objectively reasonable belief that Shelly was\\narmed and dangerous, this belief only would have justified a\\npat-down for weapons, not the intrusion into bodily privacy\\nthat occurred here. See id. at 92–93 (holding that an officer\\nmust possess a reasonable belief that an individual is armed\\nand dangerous before conducting a weapons pat-down, even\\nif the individual is on the premises where officers are\\nexecuting a search warrant) (citing Adams v. Williams,\\n407 U.S. 143, 146 (1972); Terry v. Ohio, 392 U.S. 1, 21–27\\n(1968)). Indeed, the agents had monitored Shelly in the\\nkitchen for approximately 30 minutes before Shelly asked to\\n\\n18 IOANE V. NOLL\\n\\nuse the bathroom, and nowhere in the record does it reflect\\nthat the officers conducted a pat-down search of Shelly or\\nMichael.\\n\\n Third, Agent Noll asserts that other safety concerns\\njustified monitoring Shelly while she used the bathroom\\nbecause the bathroom was not secure, and Shelly could have\\ngained access to the rest of the house through a second door\\nin the bathroom, putting officers or herself at risk. However,\\nby the time Shelly needed to use the bathroom, other agents\\nalready had checked the bathroom for weapons.\\nAdditionally, Agent Noll offers no explanation why\\nwatching Shelly use the bathroom was the only way to abate\\nthe risk that Shelly might flee, given that other officers might\\nhave been recruited to stand outside the bathroom’s second\\ndoor. See Grummett, 779 F.3d at 494 (concluding that the\\nprison had not violated inmates’ rights when the prison had\\ndevised the least intrusive means to serve the state security\\ninterests). Indeed, the agents permitted Michael, who was\\nthe subject of the investigation, to use the bathroom while a\\nmale agent stood outside the door. In sum, the justifications\\nAgent Noll offers for initiating the search weigh in favor of\\na determination of unreasonableness.\\n\\n Finally, the search was conducted in the Ioane’s home\\nbathroom. The law recognizes heightened privacy interests\\nin the home, which arguably makes this intrusion more\\negregious, especially when Shelly herself was not the subject\\nof the search. See Kyllo v. United States, 533 U.S. 27, 31\\n(2001). The place of the search, therefore, also weighs in\\nfavor of unreasonableness.\\n\\n Weighing the scope, manner, justification, and place of\\nthe search, a reasonable jury could conclude that Agent\\nNoll’s actions were unreasonable and violated Shelly’s\\nFourth Amendment rights. Agent Noll’s general interests in\\n\\n IOANE V. NOLL 19\\n\\npreventing destruction of evidence and promoting officer\\nsafety did not justify the scope or manner of the intrusion\\ninto Shelly’s most basic subject of privacy, her naked body.\\nSee York, 324 F.2d at 455; see also Byrd, 629 F.3d at 1141.\\nWe therefore affirm the district court on this issue.\\n\\n 3. Clearly Established\\n\\n The second part of the qualified immunity test requires\\nus to determine whether, at the time of Agent Noll’s actions\\nin June 2006, the law was clearly established. To be clearly\\nestablished, “[t]he contours of the right must be sufficiently\\nclear that a reasonable official would understand that what\\n[she] is doing violates that right.” Anderson v. Creighton,\\n483 U.S. 635, 640 (1987). That is, the right must be\\nestablished “in a more particularized, and hence more\\nrelevant, sense[.]” Id.; Dunn v. Castro, 621 F.3d 1196, 1201\\n(9th Cir. 2010) (“[T]he right allegedly violated must be\\ndefined at the appropriate level of specificity before a court\\ncan determine if it was clearly established.”) (quoting Wilson\\nv. Layne, 526 U.S. 603, 615 (1999)). This high standard is\\nintended to give officers breathing room “to make\\nreasonable but mistaken judgments about open legal\\nquestions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).\\n“[I]t protects all but the plainly incompetent or those who\\nknowingly violate the law.” Id. (quoting Malley v. Briggs,\\n475 U.S. 335, 341 (1986)). While the Supreme Court has\\nrepeatedly admonished this court not to define clearly\\nestablished law at a high level of generality, see, e.g., City &\\nCty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1775–76 (2015), we\\nneed not identify a prior identical action to conclude that the\\nright is clearly established, Anderson, 483 U.S. at 640. We\\nfirst look to binding precedent to determine whether a law\\nwas clearly established. Chappell v. Mandeville, 706 F.3d\\n1052, 1056 (9th Cir. 2013).\\n\\n20 IOANE V. NOLL\\n\\n By 2006, much of our Circuit’s precedent regarding the\\nright to bodily privacy had been established. First, from\\nYork, it was clearly established that an individual’s naked\\nbody is the most basic subject of privacy. 324 F.2d at 455.\\nSecond, from Grummett, it was clearly established that\\ncasual, restricted, and obscured viewing of a prison inmate’s\\nnaked body is constitutionally permitted if it is justified by\\nlegitimate government interests such as prison security\\nneeds. 779 F.2d at 492, 494–95. Finally, from Sepulveda, it\\nwas clearly established that a male parole officer’s\\nintentional viewing of a female parolee providing a urine\\nsample, over the parolee’s objection, is unconstitutional.\\n967 F.2d at 1416.\\n\\n Additionally, it was clearly established by 2006 that an\\nindividual’s Fourth Amendment right against unreasonable\\nsearches is not abrogated by virtue of her presence at the\\nexecution of a search warrant. See Ybarra, 444 U.S. at 91–\\n93. In Ybarra, the Supreme Court held that an officer\\nexecuting a search warrant on a premises must possess a\\nreasonable belief that an individual is armed and dangerous\\nbefore conducting a weapons pat-down of the individual. Id.\\n\\n Taken together, the holdings from York, Grummett,\\nSepulveda, and Ybarra put the unlawfulness of Agent Noll’s\\nconduct beyond debate. See al-Kidd, 563 U.S. at 741 (“We\\ndo not require a case directly on point, but existing precedent\\nmust have placed the statutory or constitutional question\\nbeyond debate”); White v. Lee, 227 F.3d 1214, 1238 (9th Cir.\\n2000) (“[Cl]osely analogous preexisting case law is not\\nrequired to show that a right was clearly established.”).\\n\\n First, unlike the inmates in Grummett or the parolee in\\nSepulveda, Shelly’s privacy interests had not been reduced.\\nThe agents were executing a search warrant at Shelly’s\\nhouse, but Shelly had not been detained. Furthermore,\\n\\n IOANE V. NOLL 21\\n\\nMichael, and not Shelly, was the subject of the investigation.\\nThis makes the intrusion here even more significant than in\\nGrummett or Sepulveda.\\n\\n Second, it is clearly established that such a significant\\nintrusion as occurred here never can be permitted in the\\nabsence of legitimate government interests, which here,\\nplainly were lacking. See Grummett, 779 F.2d at 496;\\nKnights, 534 U.S. at 118–19 (“[T]he reasonableness of a\\nsearch is determined by assessing, on the one hand, the\\ndegree to which it intrudes upon an individual’s privacy and,\\non the other, the degree to which it is needed for the\\npromotion of legitimate governmental interests.”) (internal\\nquotation marks and citation omitted).\\n\\n Finally, if the Constitution prohibits an officer from\\nconducting a weapons pat-down of an individual during\\nexecution of a search warrant in the absence of a reasonable\\nbelief that the individual is armed and dangerous, the\\nintrusion here, for which Agent Noll has articulated no\\nreasonable belief that Shelly was armed and dangerous,\\nclearly was unconstitutional. See Ybarra, 444 U.S. at 91–93.\\nAnd, even if Agent Noll had possessed a reasonable and\\narticulable belief that Shelly was armed and dangerous, it is\\nbeyond debate that Agent Noll initially only would have\\nbeen constitutionally permitted to conduct a pat-down search\\nand not watch Shelly use the bathroom. See id. at 92–93\\n(citing Terry, 392 U.S. at 21–27). Accordingly, Agent Noll’s\\ndecision to monitor Shelly while Shelly used the restroom,\\nwhen Agent Noll clearly was not authorized to conduct a\\nweapons pat down, arguably qualifies as “plainly\\nincompetent.” See al-Kidd, 563 U.S. at 743.\\n\\n In sum, a reasonable officer in Agent Noll’s position\\nwould have known that such a significant intrusion into\\nbodily privacy, in the absence of legitimate government\\n\\n22 IOANE V. NOLL\\n\\njustification, is unlawful. Hope v. Pelzer, 536 U.S. 730, 739–\\n41 (2002) (“[O]fficials can still be on notice that their\\nconduct violates established law even in novel factual\\ncircumstances.”). We therefore conclude that Agent Noll is\\nnot entitled to qualified immunity.\\n\\n AFFIRMED.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4471,"cells":{"id":{"kind":"number","value":4662529,"string":"4,662,529"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Pit River Tribe v. Blm"},"decision_date":{"kind":"string","value":"2019-09-19"},"docket_number":{"kind":"string","value":"17-15616"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: William A. Fletcher and Morgan Christen, Circuit Judges, and Roslyn O. Silver,* District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"CHRISTEN, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nPIT RIVER TRIBE; NATIVE No. 17-15616\\nCOALITION FOR MEDICINE\\nLAKE HIGHLANDS DEFENSE; D.C. Nos.\\nMOUNT SHASTA 2:04-cv-00956-JAM-AC\\nBIOREGIONAL ECOLOGY 2:04-cv-00969-JAM-AC\\nCENTER; SAVE MEDICINE\\nLAKE COALITION; MEDICINE\\nLAKE CITIZENS FOR QUALITY OPINION\\nENVIRONMENT,\\n Plaintiffs-Appellees,\\n\\n v.\\n\\nBUREAU OF LAND\\nMANAGEMENT; U.S.\\nDEPARTMENT OF THE\\nINTERIOR,\\n Defendants-Appellants.\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of California\\n John A. Mendez, District Judge, Presiding\\n\\n Argued and Submitted May 14, 2019\\n Seattle, Washington\\n\\n Filed September 19, 2019\\n\\f2 PIT RIVER TRIBE V. BLM\\n\\nBefore: William A. Fletcher and Morgan Christen, Circuit\\n Judges, and Roslyn O. Silver,* District Judge.\\n\\n Opinion by Judge Christen\\n\\n\\n SUMMARY**\\n\\n\\n Geothermal Steam Act / Federal Leases\\n\\n The panel affirmed the district court’s summary judgment\\nin favor of Pit River Tribe and several environmental\\norganizations in their action against federal agencies\\nresponsible for administering twenty-six unproven\\ngeothermal leases located in California’s Medicine Lake\\nHighlands.\\n\\n Pit River alleged that the Bureau of Land Management’s\\ndecision to continue the terms of the unproven leases for up\\nto forty years violated the Geothermal Steam Act (“GSA”).\\n\\n Section 1017 of the GSA authorizes the Secretary of the\\nInterior to approve cooperative or unit plans to manage\\nmultiple geothermal leases as a unit, and the Secretary must\\nreview such unit plans every five years and eliminate any\\nlease not reasonably necessary for unit operations under the\\nplan. Section 1005(a) of the GSA provides that geothermal\\n\\n\\n *\\n The Honorable Roslyn O. Silver, United States District Judge for the\\nDistrict of Arizona, sitting by designation.\\n **\\n This summary constitutes no part of the opinion of the court. It has\\nbeen prepared by court staff for the convenience of the reader.\\n\\f PIT RIVER TRIBE V. BLM 3\\n\\nleases on federal land have primary lease terms of ten years,\\nand allows the leases to be continued for as long as\\ngeothermal steam is produced in commercial quantities.\\nSection 1005(c) states that leases subject to “unit plans” may\\nbe extended even if not productive during the initial ten-year\\nterm under certain conditions.\\n\\n The panel held that the statutory meaning of 30 U.S.C.\\n§ 1005(a) was clear and unambiguous. The panel held that\\nthe provision permitted production-based forty-year\\ncontinuations at the end of the primary term only on a lease-\\nby-lease basis, not on a unit-wide basis. It was BLM’s\\nburden to provide a compelling reason for the court to depart\\nfrom the plain language of § 1005(a), and the panel\\nconcluded that it had not met that burden here.\\n\\n\\n COUNSEL\\n\\nMary Gabrielle Sprague (argued) and Ellen J. Durkee,\\nAppellate Section; Eric Grant, Deputy Assistant Attorney\\nGeneral; Jeffrey Bossert Clark, Acting Assistant Attorney\\nGeneral; Environment and Natural Resources Division,\\nUnited States Department of Justice, Washington, D.C.; for\\nDefendants-Appellants.\\n\\nSamuel Lazerwitz (argued) and Caleb G. Wright (argued),\\nCertified Law Students; Alicia E. Thesing, Isaac C. Cheng,\\nand Deborah Ann Sivas, Supervising Attorneys;\\nEnvironmental Law Clinic, Mills Legal Clinic at Stanford\\nLaw School, Stanford, California; for Plaintiffs-Appellees.\\n\\f4 PIT RIVER TRIBE V. BLM\\n\\n OPINION\\n\\nCHRISTEN, Circuit Judge:\\n\\n The Bureau of Land Management and the Department of\\nthe Interior (collectively, BLM) appeal the district court’s\\norder granting summary judgment in favor of the Pit River\\nTribe and several local and regional environmental\\norganizations (collectively, Pit River). We have jurisdiction\\npursuant to 28 U.S.C. § 1291 and we affirm the district\\ncourt’s judgment.\\n\\n I. Background\\n\\n Pit River filed this action against the federal agencies\\nresponsible for administering twenty-six unproven\\ngeothermal leases located in California’s Medicine Lake\\nHighlands. We refer to these leases as “unproven” because\\nBLM has not determined that they are capable of producing\\ngeothermal steam in commercial quantities. See Pit River\\nTribe v. Bureau of Land Mgmt., 793 F.3d 1147, 1149–50 (9th\\nCir. 2015) (Pit River III).1 Calpine Corporation, the current\\nleaseholder, was also named as a defendant but it did not\\nappeal the judgment the district court entered on remand from\\nour court. The operative complaint alleges that BLM’s\\ndecision to continue the terms of the unproven leases for up\\nto forty years violated the Geothermal Steam Act (GSA), the\\nNational Environmental Policy Act (NEPA), the National\\n\\n\\n\\n\\n 1\\n Our decision in Pit River III provides a detailed history of the case.\\nWe recount that history only as necessary to resolve this appeal.\\n\\f PIT RIVER TRIBE V. BLM 5\\n\\nHistoric Preservation Act (NHPA), and the Indian-fiduciary-\\ntrust doctrine.2 Id. at 1148.\\n\\n The subject leases are located within the Glass Mountain\\nUnit Plan. The parties agree that the GSA requires that any\\nlease be allowed to continue if it is producing geothermal\\nsteam in commercial quantities, or is shown to be capable of\\ndoing so, within its primary ten-year term. See 30 U.S.C.\\n§ 1005(a) (1994).3 The parties’ dispute centers on whether all\\nleases committed to a “unit plan” may be collectively\\ncontinued for up to forty years if any single lease in the unit\\nbecomes productive during the primary term. Pit River\\nargues that § 1005(a) allows production-based continuations\\nto be granted only on an individual basis. BLM argues that\\n§ 1005(a) allows production-based continuations to be\\ngranted to all leases in a unit if any one of them becomes\\nproductive during the primary term. BLM’s interpretation of\\nthe GSA is heavily informed by its view that the Mineral\\nLeasing Act (MLA), 30 U.S.C. §§ 221i–236a (1964),\\nprovides an important backdrop against which the GSA must\\nbe analyzed.4\\n\\n\\n\\n\\n 2\\n The complaint also alleges a violation of the Freedom of\\nInformation Act (FOIA), but the district court’s ruling on the FOIA issue\\nwas not appealed.\\n 3\\n Unless otherwise specified, all citations to the GSA refer to the 1994\\nedition of the United States Code because the parties agree that this\\niteration of the GSA applies to their dispute.\\n 4\\n Unless otherwise noted, all citations to the MLA’s provisions are to\\nthe 1964 edition of the United States Code, which was in effect when the\\nGSA was enacted.\\n\\f6 PIT RIVER TRIBE V. BLM\\n\\n II. Procedural History\\n\\n This is the second time our court has addressed the\\ncontroversy concerning the duration of the leases in the Glass\\nMountain Unit. See Pit River III, 793 F.3d at 1148. In July\\nof 2013, the district court granted judgment on the pleadings\\nin favor of BLM on the grounds that Pit River lacked\\nprudential standing to assert its GSA claim. Id. at 1154–55.\\nWe reversed the district court’s judgment, ruling that Pit\\nRiver’s claim fell within the GSA’s “zone of interests,” id. at\\n1155–58, and we remanded to the district court so it could\\nconsider the merits of the claims.\\n\\n On remand from Pit River III, the district court granted\\nsummary judgment in favor of Pit River. The court ruled\\nthat, as it was written in 1994, the GSA’s primary term\\nprovision was unambiguous and did not authorize BLM to\\ncontinue the twenty-six unproven leases for forty years\\nsimply because they were part of a unit that contained a\\nsingle proven lease. The district court reasoned that because\\nCongress referred to “unit plans” in § 1005(c) and (g), but\\nomitted this term from § 1005(a), “Congress did not\\ncontemplate the additional [forty]-year term for\\nnonproductive leases committed to a unit plan under\\n[§] 1005(a).” In an amended judgment, the district court\\nvacated and set aside BLM’s May 18, 1998 decision granting\\nthe lease continuations, and remanded the proceedings to the\\nagency to determine whether to extend or cancel the twenty-\\nsix leases pursuant to the GSA and the implementing\\nregulations in effect as of May 1998. The district court\\nobserved that its judgment did not affect BLM’s decision to\\ncontinue the single proven lease, and that Pit River’s NEPA,\\nNHPA, and fiduciary duty claims were mooted by the court’s\\n\\f PIT RIVER TRIBE V. BLM 7\\n\\nvacatur of BLM’s 1998 decision letters. BLM appeals the\\ndistrict court’s judgment.\\n\\n III. Standard of Review\\n\\n We review de novo an order granting summary judgment.\\nCty. of Amador v. U.S. Dep’t of the Interior, 872 F.3d 1012,\\n1020 (9th Cir. 2017).\\n\\n IV. Jurisdiction\\n\\n We must first assure ourselves of our jurisdiction to hear\\nthis appeal because the district court’s order granting\\nsummary judgment vacated BLM’s 1998 decision letters and\\nremanded to the agency. See Pit River Tribe v. U.S. Forest\\nServ., 615 F.3d 1069, 1075 (9th Cir. 2010). “[R]emand\\norders are generally not ‘final’ decisions for purposes of\\nsection 1291[,]” id., but a remand order is considered final\\nand appealable where: “(1) the district court conclusively\\nresolves a separable legal issue, (2) the remand order forces\\nthe agency to apply a potentially erroneous rule which may\\nresult in a wasted proceeding, and (3) review would, as a\\npractical matter, be foreclosed if an immediate appeal were\\nunavailable.” Id. (quoting Alsea Valley All. v. Dep’t of\\nCommerce, 358 F.3d 1181, 1184 (9th Cir. 2004)). Here,\\nbecause the district court determined that 30 U.S.C. § 1005(a)\\ndid not authorize BLM to continue the unproven leases based\\non the single proven lease, BLM will be constrained by this\\ninterpretation on remand. If the district court’s interpretation\\nis incorrect, the remand will result in a wasted proceeding.\\nMoreover, review of the district court’s interpretation will be\\nforeclosed absent immediate appeal because, after remand to\\nthe agency, BLM cannot later appeal the result of its own\\nagency decision. See Alsea Valley All., 358 F.3d at 1184;\\n\\f8 PIT RIVER TRIBE V. BLM\\n\\nChugach Alaska Corp. v. Lujan, 915 F.2d 454, 457 (9th Cir.\\n1990). For these reasons, we conclude that we have\\njurisdiction to hear this appeal.\\n\\n V. Discussion\\n\\n A. The Geothermal Steam Act\\n\\n This appeal requires us to interpret the GSA, 30 U.S.C.\\n§§ 1001–1028 (1994). Congress enacted the GSA in 1970 “to\\npromote the development of geothermal leases on federal\\nlands.” Geo-Energy Partners-1983 Ltd. v. Salazar, 613 F.3d\\n946, 949 (9th Cir. 2010). Geothermal resources include “the\\nheat or energy found in steam, hot water, or geothermal\\nformations.” Id. The GSA was adopted in the wake of the\\nMLA, which governs oil and gas leases on federal lands. BP\\nAm. Prod. Co. v. Burton, 549 U.S. 84, 87 (2006). A brief\\nexplanation of the MLA’s unitization provision provides\\nhelpful background.\\n\\n When Congress enacted the MLA, oil and gas were\\nextracted under the common-law “rule of capture,” which\\nencouraged landowners to drill wells on individual leases to\\ncapture as much oil or gas as possible. See Frank Sylvester\\n& Robert W. Malmsheimer, Oil and Gas Spacing and Forced\\nPooling Requirements: How States Balance Energy\\nDevelopment and Landowner Rights, 40 U. Dayton L. Rev.\\n47, 49 (2015). The rule of capture encouraged overdrilling\\nthat dissipated reservoir pressure and ultimately led to\\ninefficient oil and gas recovery. See Northcutt Ely, The\\nConservation of Oil, 51 Harv. L. Rev. 1209, 1219–22 (1938).\\nThe practice of unitization emerged in response to these\\ninefficiencies. See Sylvester, et al., supra at 49–50.\\nUnitization allows an entire oil or gas field “to be operated as\\n\\f PIT RIVER TRIBE V. BLM 9\\n\\na single entity, without regard to surface boundary issues,”\\nsee Norfolk Energy, Inc. v. Hodel, 898 F.2d 1435, 1438 (9th\\nCir. 1990) (internal quotation marks omitted), i.e., it allows\\ndrilling and production operations occurring on a single lease\\nwithin a unit to be deemed performed on all other leases\\nwithin the unit for purposes of showing that bona fide\\ndevelopment efforts have been made, or for sharing royalties.\\nSee, e.g., 30 U.S.C. § 1017; 30 U.S.C. § 226(j); 43 C.F.R.\\n§§ 3280–3287 (1997). By limiting the need to drill on each\\nlease within a unit, unitization lessens the likelihood that an\\noil or gas reservoir will suffer from overdrilling and depleted\\nreservoir pressure. Congress incorporated the unitization\\nconcept into the MLA, granting the Secretary of the Interior\\nthe authority to approve unit plans of development when\\ndoing so is in the public interest. See Pub. L. No. 71-853, 46\\nStat. 1523. Although significant differences exist between\\nthe MLA and the GSA, the GSA also permits lessees to join\\ntogether under unit plans of development. See 30 U.S.C.\\n§ 1017; 43 C.F.R. § 3280.0–2 (1997).\\n\\n The GSA refers to production-based “continuations” and\\ndrilling-based “extensions”—concepts articulated in the\\nMLA—but neither the MLA nor the GSA explicitly define\\nthese terms. See 30 U.S.C. §§ 221i–236a; 30 U.S.C. § 1001.\\nThe parties agreed at oral argument that, like the MLA, the\\nGSA allows for lease continuations based on production, and\\nlease extensions based on exploratory drilling activities.5\\n\\n\\n\\n 5\\n We note that the Interior Board of Land Appeals generally interprets\\na continuation based on production as a prolonged lease term that is\\n“indefinite and is allowed when a lease is presently capable of producing\\noil or gas” in commercial quantities, while an “‘extension by drilling’ . . .\\nrequires that a lessee conduct actual drilling operations on the last day of\\n\\f10 PIT RIVER TRIBE V. BLM\\n\\n Pit River’s claims implicate §§ 1005 and 1017 of the\\nGSA, so we discuss these provisions in some detail. Section\\n1017 governs unit plans. Section 1005 governs the duration\\nof geothermal lease terms.\\n\\n 1. 30 U.S.C. § 1017: The Unitization Provision\\n\\n Section 1017 of the GSA authorizes the Secretary of the\\nInterior to approve cooperative or unit plans to manage\\nmultiple leases as a unit “[f]or the purpose of properly\\nconserving the natural resources of any geothermal pool,\\nfield, or like area.” 30 U.S.C. § 1017. The Secretary must\\nreview such unit plans every five years “and, after notice and\\nopportunity for comment, eliminate from inclusion in such\\nplan any lease or part of a lease not regarded as reasonably\\nnecessary to cooperative or unit operations under the plan.”\\nPit River III, 793 F.3d at 1150 (quoting 30 U.S.C. § 1017).\\n\\n 2. 30 U.S.C. § 1005: The Lease Duration\\n Provisions\\n\\n Section 1005(a) of the GSA provides that geothermal\\nleases on federal land have primary lease terms of ten years.\\n30 U.S.C. § 1005(a). If geothermal steam is produced in\\ncommercial quantities during the ten-year primary term,\\n§ 1005(a) allows the lease to be continued for as long as\\ngeothermal steam is produced in commercial quantities, not\\n\\n\\n\\n\\nthe lease term with an intent to complete a producing well.” Coastal\\nPetroleum Co., 190 IBLA 347, 352, 2017 WL 3263839, at *4 (July 25,\\n2017).\\n\\f PIT RIVER TRIBE V. BLM 11\\n\\nto exceed an additional forty years.6 Id. At the end of the\\nfirst forty-year term granted pursuant to § 1005(a), the GSA\\naffords a preferential right of renewal for a second forty-year\\nterm if geothermal steam is still being produced in\\ncommercial quantities and the land is not needed for other\\npurposes. 30 U.S.C. § 1005(b).\\n\\n Neither § 1005(a) nor § 1005(b) refer to “unit plans,” but\\n§ 1005(c) does. It is entitled “Cooperative or unit plan for\\ndrilling operations; extension of term; renewal.” 30 U.S.C.\\n§ 1005(c). Section 1005(c) states that leases subject to unit\\nplans may be extended, even if the leases have not been\\nproductive during their initial ten-year primary terms, if\\nactual drilling operations begin prior to the end of the primary\\nlease terms and are being diligently prosecuted.7 Id. For\\nleases still not producing steam nor shown to be capable of\\nproducing in commercial quantities by the end of an\\nextension granted pursuant to § 1005(c), the agency may\\n\\n\\n 6\\n 30 U.S.C. § 1005(a) specifies that “[i]f geothermal steam is\\nproduced or utilized in commercial quantities within this term, such lease\\nshall continue for so long thereafter as geothermal steam is produced or\\nutilized in commercial quantities, but such continuation shall not exceed\\nan additional forty years.” In turn, 30 U.S.C. § 1005(d) defines “produced\\nor utilized in commercial quantities” to include a showing that a well is\\n“capable of producing geothermal steam in commercial quantities.”\\n(emphasis added).\\n 7\\n 30 U.S.C. § 1005(c) provides, inter alia, that a lease for which:\\n\\n actual drilling operations were commenced prior to the\\n end of its primary term and are being diligently\\n prosecuted at that time shall be extended for five years\\n and so long thereafter, but not more than thirty-five\\n years, as geothermal steam is produced or utilized in\\n commercial quantities.\\n\\f12 PIT RIVER TRIBE V. BLM\\n\\nauthorize one or two additional five-year extensions if the\\nlessee has made certain bona fide efforts.8 30 U.S.C.\\n§ 1005(g)(1). Notably, § 1005(g)(1) also expressly refers to\\nleases operated under “approved cooperative or unit plan[s]\\nof development.” Id. If a lease extended pursuant to\\n§ 1005(g)(1) begins producing geothermal steam in\\ncommercial quantities during a § 1005(g)(1) extension,\\n§ 1005(g)(2) provides that the lease shall be continued for up\\nto twenty-five additional years if it was previously extended\\nunder § 1005(c), “for a total of [fifty] years,” or for up to\\nthirty additional years (but not to exceed a total of fifty years)\\n\\n\\n\\n\\n 8\\n 30 U.S.C. § 1005(g)(1) states:\\n\\n (1) Any geothermal lease issued pursuant to this\\n chapter for land on which, or for which under an\\n approved cooperative or unit plan of development or\\n operation, geothermal steam has not been produced or\\n utilized in commercial quantities by the end of its\\n primary term, or by the end of any extension provided\\n by subsection (c) of this section, may be extended for\\n successive 5-year periods, but totaling not more than\\n 10 years, if the Secretary determines that the lessee has\\n met the bona fide effort requirement of subsection (h)\\n of this section, and either of the following:\\n\\n (A) [T]he payment in lieu of commercial quantities\\n production requirement of subsection (i) of this\\n section.\\n\\n (B) The significant expenditure requirement of\\n subsection (j) of this section.\\n\\f PIT RIVER TRIBE V. BLM 13\\n\\nif it was only previously extended pursuant to § 1005(g)(1).9\\n30 U.S.C. § 1005(g)(2).\\n\\n B. The Glass Mountain Leases\\n\\n Three years after Congress enacted the GSA, BLM\\npromulgated regulations authorizing holders of geothermal\\nleases to enter into unit agreements for the development of\\ngeothermal resources. See 38 Fed. Reg. 35,068, 35,073–75\\n(Dec. 21, 1973); see also 43 C.F.R. §§ 3280.0–1 to 3286.1\\n(1997). These regulations included a model unit agreement.\\nSee 38 Fed. Reg. at 35,075–80; see also 43 C.F.R. § 3286.1\\n(1997). In 1982, Calpine’s predecessors entered into the\\nGlass Mountain Unit Agreement, which tracked the\\nregulations’ model agreement.10\\n\\n The twenty-six unproven leases at issue in this\\nappeal—plus a twenty-seventh “proven lease” that BLM\\ndetermined was capable of producing geothermal steam in\\ncommercial quantities—were eventually committed to the\\nGlass Mountain Unit Agreement. Pit River III, 793 F.3d\\nat 1149–51. The Agreement established a “Unit Area” and\\n\\n 9\\n 30 U.S.C. § 1005(g)(2) provides:\\n\\n (2) A lease extended pursuant to paragraph (1) shall\\n continue so long thereafter as geothermal steam is\\n produced or utilized in commercial quantities, but such\\n continuation shall not exceed an additional 25 years, for\\n a total of 50 years, if such lease was also the subject of\\n an extension under subsection (c) of this section or an\\n additional 30 years, for a total of 50 years, if such lease\\n is only extended pursuant to paragraph (1).\\n 10\\n We do not separately identify Calpine’s predecessors to avoid\\nconfusion and because the predecessors’ actions do not affect our analysis.\\n\\f14 PIT RIVER TRIBE V. BLM\\n\\n“Participating Area.” The Unit Area is the area comprised of\\nall leases subject to the Agreement, and the Participating Area\\nis the “part of the Unit Area which is deemed to be\\nproductive,” i.e., it is “all land then regarded as reasonably\\nproved to be productive from a pool or deposit discovered or\\ndeveloped[.]” By the fifth anniversary of the Participating\\nArea’s effective date, the Agreement requires that all portions\\nof unitized lands not entitled to be included in the\\nParticipating Area must be automatically eliminated from the\\nAgreement and from the Unit Area, unless drilling operations\\nare in progress on an exploratory well and these operations\\ncontinue diligently.\\n\\n In 1989, BLM determined that a single lease in the Glass\\nMountain Unit was capable of producing geothermal steam\\nin commercial quantities. Pit River III, 793 F.3d at 1151. In\\n1991 and 1992, at the request of Calpine’s predecessors,\\nBLM’s California State Office extended the terms of twenty-\\nfour unproven leases in the Glass Mountain Unit for five\\nyears pursuant to § 1005(g)(1). BLM continued the term of\\nthe single proven lease for up to forty additional years\\npursuant to § 1005(a). Id. In the process of responding to the\\npredecessors’ requests, BLM’s California State Office\\ncommunicated with the Nevada State Office, “which advised\\nthat [forty]-year lease continuations should be granted to all\\nof the unproven Glass Mountain leases[.]” Id. The California\\nOffice disagreed. Id. It concluded that “the ‘[forty-]year\\nextension [under § 1005(a)] may only be applied to the lease\\nwith the well capable of production and not to the other\\ncommitted leases in the unit.’” Id. (second alteration in\\noriginal). The California Office noted that § 1005(a) did not\\nrefer to unit plans. Id.\\n\\f PIT RIVER TRIBE V. BLM 15\\n\\n In 1995, BLM sent Calpine’s predecessor a letter stating\\nthat the predecessor was “in default of meeting reasonable\\ndiligence in the unit,” and that the Glass Mountain Unit was\\n“no longer of any significant benefit to the BLM or Forest\\nService” because “[t]he unit has become an impediment to\\ndevelopment by causing operators to select drilling targets on\\nthe basis of whether a lease is or is not committed to the unit\\ninstead of the area with the greatest potential to support a\\ndevelopment project.” On June 3, 1996, BLM notified\\nCalpine’s predecessor via an additional letter that a proposed\\nParticipating Area should have been submitted in 1989, but\\nthat due to agency delay and other circumstances, BLM\\nwould allow submission of a proposed Participating Area\\nwithin sixty days of receipt of the letter. Calpine’s\\npredecessor submitted a proposed Participating Area on\\nAugust 15, 1996.11\\n\\n BLM’s California State Office changed its interpretation\\nof § 1005(a) in 1998. The California Office’s Program Lead,\\nSean Hagerty, circulated an internal memo that sheds light on\\nthe reasons for BLM’s changed position. Hagerty’s memo\\ndescribed the prior disagreement between BLM’s California\\nand Nevada Offices and explained that the California Office\\nwas concerned about allowing the Glass Mountain Unit to\\ncontinue for an indefinite period of time merely based on the\\nsingle proven lease. In particular, “BLM was concerned over\\nhow the Unit could be managed without any effective way of\\nrequiring the unit operator . . . to conduct additional activities\\nin the Unit prior to the submission of the initial Participating\\nArea (PA).” The memo explained that BLM was initially\\nuncertain whether the single proven lease, which was deemed\\n\\n 11\\n This information was not part of the record in Pit River III, 793\\nF.3d at 1152 n.6.\\n\\f16 PIT RIVER TRIBE V. BLM\\n\\ncapable of production but had not actually commenced\\nproduction, was legally sufficient to require Calpine’s\\npredecessor to submit an initial Participating Area. Because\\nBLM subsequently decided that a well capable of production\\nwas equivalent to a well actually in production, it requested\\nand received a proposed Participating Area from Calpine’s\\npredecessor. Hagerty’s memo concluded that, because the\\nParticipating Area had been designated, “the Glass Mountain\\nUnit boundary would contract down to the boundary of the\\n[Participating Area],” and therefore “the Glass Mountain Unit\\nAgreement no longer had an indefinite lifespan and could\\nnow be managed in the public interest.” Hagerty\\nrecommended that BLM grant an additional term of up to\\nforty years to all leases committed to the Glass Mountain\\nUnit.\\n\\n On May 18, 1998—five days after Hagerty circulated his\\nmemo—BLM’s California Office issued decision letters\\nvacating the 1991 and 1992 lease extensions for the unproven\\nleases and continuing them for up to forty years pursuant to\\n§ 1005(a).12 Pit River III, 793 F.3d at 1152. BLM explained\\nthat the decision to grant the five-year lease extensions\\npursuant to the regulation implementing § 1005(g)(1) “was in\\nerror.” BLM further explained that all leases committed to\\nthe Glass Mountain Unit should have been granted additional\\nlease terms based on the paying-well determination for the\\nsingle proven lease pursuant to the regulation implementing\\n§ 1005(a) and (d).\\n\\n\\n\\n\\n 12\\n In total, BLM continued twenty-six unproven leases, which\\nincluded two leases that were not previously extended in 1991 or 1992.\\nPit River III, 793 F.3d at 1152 n.8.\\n\\f PIT RIVER TRIBE V. BLM 17\\n\\n C. Statutory Analysis\\n\\n It is clear that the GSA authorizes “continuations” based\\non production, see 30 U.S.C. § 1005(a), and there is no\\ndispute that the GSA authorizes five-year “extensions” based\\non actual drilling or bona fide efforts. See § 1005(c), (g).\\nBoth parties argue that 30 U.S.C. § 1005(a) is clear and\\nunambiguous, but they advocate for opposite interpretations.\\nBLM argues that § 1005(a), read in light of the GSA as a\\nwhole and against the backdrop of the MLA, authorizes forty-\\nyear continuations on a unit-wide basis once a single lease in\\na unit is deemed productive. Pit River argues that § 1005(a)\\nunambiguously authorizes forty-year continuations at the end\\nof a primary term only on a lease-by-lease basis, not on a\\nunitized basis.\\n\\n “We interpret a federal statute by ascertaining the intent\\nof Congress and by giving effect to its legislative will[,]”\\nbeginning with the statute’s language. Artichoke Joe’s Cal.\\nGrand Casino v. Norton, 353 F.3d 712, 720 (9th Cir. 2003)\\n(internal quotation marks omitted). We “presume that [the]\\nlegislature says in a statute what it means and means in a\\nstatute what it says.” BedRoc Ltd., LLC v. United States,\\n541 U.S. 176, 183 (2004) (internal quotation marks omitted).\\n“The plainness or ambiguity of statutory language is\\ndetermined by reference to the language itself, the specific\\ncontext in which the language is used, and the broader\\ncontext of the statute as a whole.” Geo-Energy Partners-\\n1983 Ltd., 613 F.3d at 956 (internal quotation marks omitted).\\nIf “the language is not dispositive, we look to the\\ncongressional intent revealed in the history and purposes of\\nthe statutory scheme.” Artichoke Joe’s, 353 F.3d at 720\\n(internal quotation marks omitted). “[I]f we find that the\\nstatutory meaning is plain and unambiguous, then our ‘sole\\n\\f18 PIT RIVER TRIBE V. BLM\\n\\nfunction . . . is to enforce it according to its terms.’”\\nHernandez v. Williams, Zinman & Parham PC, 829 F.3d\\n1068, 1072 (9th Cir. 2016) (alteration in original) (quoting\\nUnited States v. Ron Pair Enters., 489 U.S. 235, 241 (1989));\\nsee Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,\\n467 U.S. 837, 842–43 (1984) (“If the intent of Congress is\\nclear, that is the end of the matter; for the court, as well as the\\nagency, must give effect to the unambiguously expressed\\nintent of Congress.”).\\n\\n We begin with the GSA’s text, and observe that § 1005(a)\\ndoes not include the term “unit plan.” See 30 U.S.C.\\n§ 1005(a). It is not our practice to read words into statutory\\nprovisions, see United States v. Watkins, 278 F.3d 961, 965\\n(9th Cir. 2002), as a statute’s plain language is “our primary\\nguide to Congress’ preferred policy.” Sandoz Inc. v. Amgen\\nInc., 137 S. Ct. 1664, 1678 (2017) (internal quotation marks\\nomitted). Relatedly, we have observed that:\\n\\n It is a well-established canon of statutory\\n interpretation that the use of different words\\n or terms within a statute demonstrates that\\n Congress intended to convey a different\\n meaning for those words. Congress’s explicit\\n decision to use one word over another in\\n drafting a statute is material. It is a decision\\n that is imbued with legal significance and\\n should not be presumed to be random or\\n devoid of meaning.\\n\\nSEC v. McCarthy, 322 F.3d 650, 656 (9th Cir. 2003) (internal\\ncitations omitted). “[W]hen Congress includes particular\\nlanguage in one section of a statute but omits it in another\\nsection of the same Act, it is generally presumed that\\n\\f PIT RIVER TRIBE V. BLM 19\\n\\nCongress acts intentionally and purposely in the disparate\\ninclusion or exclusion.” Barnhart v. Sigmon Coal Co.,\\n534 U.S. 438, 452 (2002) (internal quotation marks omitted).\\nWe conclude that the use of “unit plan” in § 1005(c) and\\n(g)(1) expressly memorialized congressional intent to make\\nshort lease extensions available on a unit-wide basis if leases\\ndo not become productive during their primary terms but\\nlease operators can show that drilling has commenced or\\nother bona fide efforts have been made. In other words, we\\nconclude that the omission of the term “unit plan” in\\n§ 1005(a) is “imbued with legal significance.” McCarthy,\\n322 F.3d at 656.\\n\\n BLM argues that Congress’s omission of the term “unit\\nplan” from § 1005(a) is not a rejection of the unitization\\nprinciple because the subsection must be read in conjunction\\nwith the GSA as a whole and against the historical backdrop\\nof the MLA. This argument is premised on BLM’s unstated\\nassertion that geothermal steam reservoirs function in the\\nsame way that underground pools of oil and gas do. Prior to\\noral argument, the record contained no support for this\\nassertion. After oral argument, BLM submitted a letter\\nexplaining that overdrilling in geothermal fields results in a\\nloss of well pressure, just like oil and gas fields. As support,\\nBLM’s letter cited a public document that reported on the\\nrapid development of a northern California hydrothermal\\nsystem and the resulting loss of production well pressure. Pit\\nRiver has not had a chance to respond, but even assuming that\\ngeothermal reservoirs function the same way as oil and gas\\nreservoirs do, the general framework Congress adopted in the\\nMLA does not overcome the plain language Congress chose\\nfor the GSA’s primary term and unitization provisions.\\n\\f20 PIT RIVER TRIBE V. BLM\\n\\n BLM argues that the MLA provides important context\\nand that the incorporation of the unitization principle into the\\nMLA suggests Congress intended to adopt the same statutory\\nscheme for the GSA. We disagree. Congress enacted the\\nMLA decades before it enacted the GSA, and we assume\\nCongress is knowledgeable about existing law when it enacts\\nnew legislation. See Miles v. Apex Marine Corp., 498 U.S.\\n19, 32 (1990); see also Cty. of Amador, 872 F.3d at 1022\\n(“[U]nderstanding the historical context in which a statute\\nwas passed can help to elucidate the statute’s purpose and the\\nmeaning of statutory terms and phrases.”). The GSA’s\\nsponsor understood the 1970 bill to generally permit the\\nSecretary of Interior to lease public lands in “much the same\\nmanner” as the Secretary was authorized to do by the MLA.\\nS. Rep. No. 91-1160, at 4 (1970). But Congress recognized\\nthat efforts to harness geothermal steam in an emerging\\nmarket posed unique challenges. See H.R. Rep. No. 91-1544,\\nat 3–4 (1970). By 1970, the MLA was in its fiftieth year of\\nregulating oil and gas leasing but the geothermal steam\\nindustry was still in its infancy. Congress acknowledged that\\nthe mining and mineral leasing statutes “lack many of the\\nrequirements necessary to encourage [geothermal steam’s]\\norderly development.” Id. at 5. The hope was that the GSA\\nwould “establish a framework that will make this risk-laden,\\nrelatively untried industry an attractive investment in the\\npublic interest.” S. Rep. No. 91-1160, at 9. Recognizing the\\nneed to encourage geothermal exploration by allowing\\nleaseholders time to get the resource to market—or to bring\\nthe market to the geothermal steam by building\\ninfrastructure—the GSA’s original sponsor acknowledged\\n“there may be some reasonable delay beyond the expiration\\nof the primary term before a generating facility can be\\ninstalled to receive the steam and commence actual power\\n\\f PIT RIVER TRIBE V. BLM 21\\n\\nproduction.”13 S. Rep. No. 91-1160, at 8. Contrary to BLM’s\\nargument, the text of the GSA, read as a whole, demonstrates\\nthat Congress deviated from the MLA when it adopted the\\nGSA, perhaps because it was aware of the need to\\naccommodate the uniquely-situated geothermal steam\\ntechnology and developing market.\\n\\n A comparison of the GSA’s primary term provision,\\n§ 1005(a), and the MLA’s primary term provision, 30 U.S.C.\\n§ 226(e), reveals notable differences. Section 226(e) is\\nentitled “Primary terms” and it expressly incorporates the\\nphrase “unit plan.” Section 226(e) governs primary lease\\nterm continuations and extensions thereafter. Congress did\\nnot adopt § 226(e) wholesale when it enacted the GSA;\\nrather, it split this provision into two subsections. Section\\n1005(a) authorizes primary term continuations and § 1005(c)\\nseparately authorizes post-primary term extensions and\\nproduction-based continuations. BLM describes the decision\\nto divide § 226(e) into § 1005(a) and (c) in the GSA as a\\nstylistic choice, but we are mindful that Congress could have\\nreplicated the MLA’s primary term provision (including the\\n“unit plan” language) directly into the statutory text of GSA\\n§ 1005(a), and it did not do so.\\n\\n BLM goes on to argue that the GSA provision authorizing\\nunit plans, 30 U.S.C. § 1017, authorizes § 1005(a)’s\\nproduction-based continuations to be granted on a unit-wide\\n\\n\\n 13\\n Indeed, even as of 1988, Congress acknowledged the challenges\\ninvolved in harnessing geothermal energy. H.R. Rep. No. 100-664, at 6\\n(1988) (“Unlike coal, oil and gas which can be transported to power\\nproduction facilities, the steam from a geothermal well cannot be\\ntransported more than two miles because of heat dissipation,” and must be\\nconverted to electricity at or near the well site.).\\n\\f22 PIT RIVER TRIBE V. BLM\\n\\nbasis because § 1017 is fairly read to broadly incorporate the\\nMLA’s unitization framework into the GSA. We are not\\npersuaded that so much can be read into § 1017. First,\\nBLM’s reasoning “would require us to assume that Congress\\nchose a surprisingly indirect route to convey an important and\\neasily expressed message.” Landgraf v. USI Film Prods.,\\n511 U.S. 244, 262 (1994). See generally Zachary v. Cal.\\nBank & Tr., 811 F.3d 1191, 1198–99 (9th Cir. 2016)\\n(rejecting statutory reading that reflected a policy choice\\nCongress could have made “in a far more straightforward\\nmanner”). Section 1017 authorizes unit agreements and\\nconstriction of unit plans, requiring that, no more than five\\nyears after approval of a unit plan (and at least every five\\nyears thereafter), the Secretary of the Interior must eliminate\\nleases “not regarded as reasonably necessary to . . . unit\\noperations.”14 30 U.S.C. § 1017. Section 1017 further\\nprovides that leases eliminated from a unit by the constriction\\nprocess may receive extensions pursuant to § 1005(c) and (g)\\nonly if they separately qualify.15 Id. The language in § 1017\\nrepresents a significant departure from the MLA’s corollary\\nprovision governing unit plans, MLA § 226(j). The MLA\\nallows lessees to form unit plans for development, but it\\nexpressly allows leases to be continued indefinitely on a unit-\\nwide basis—for as long as production continues. See\\n30 U.S.C. § 226(j). Setting aside renewals authorized by\\n\\n\\n 14\\n Section 1017 also provides that this “elimination shall be based on\\nscientific evidence, and shall occur only when it is determined by the\\nSecretary to be for the purpose of conserving and properly managing the\\ngeothermal resource.”\\n 15\\n BLM argues that this language reaffirms the unitization principle.\\nBut the impact of this language is limited. It merely confirms that leases\\nconstricted from a unit plan must individually qualify for extensions under\\n§ 1005(c) or (g); it says nothing about continuations under § 1005(a).\\n\\f PIT RIVER TRIBE V. BLM 23\\n\\n§ 1005(b) and (g)(3), all GSA lease terms are capped at fifty\\nyears. The MLA also differs from the GSA by not requiring\\nplan review every five years for constriction of the unit plan.\\nSee id. In sum, we agree that the MLA provides context for\\nconsidering the terms of the GSA, but it cannot be doubted\\nthat Congress varied from the MLA when it fashioned\\n§§ 1005 and 1017, and the MLA’s unitization framework\\ndoes not require the conclusion BLM urges us to reach.\\n\\n BLM next argues that the following language in\\n§ 1005(g)(1) demonstrates that § 1005(a) authorizes\\ncontinuations on a unit-wide basis:\\n\\n Any geothermal lease issued pursuant to this\\n chapter for land on which, or for which under\\n an approved cooperative or unit plan of\\n development or operation, geothermal steam\\n has not been produced or utilized in\\n commercial quantities by the end of its\\n primary term, or by the end of any extension\\n provided by subsection (c) . . . may be\\n extended for successive 5-year periods[.]\\n\\n§ 1005(g)(1). Congress added this provision in 1988 to help\\nnon-productive leases withstand adverse market conditions\\ncreated by a world energy glut. See H.R. Rep. No. 100-664,\\nat 6 (1988). As BLM’s argument goes, because § 1005(g)(1)\\nallows unproductive leases in unit plans to be extended for\\nfive years on a unit-wide basis if they remain unproductive at\\nthe end of their primary terms, and because it also provides\\nthat leases are ineligible for § 1005(g)(1) extensions if they\\nhave received § 1005(a) continuations, then § 1005(g)(1)\\nmust be read as confirmation that § 1005(a) authorizes\\nproduction-based continuations on a unit-wide basis. Again,\\n\\f24 PIT RIVER TRIBE V. BLM\\n\\nwe are not persuaded. BLM’s reasoning overlooks the most\\nstraightforward reading of the statute: Regardless of the\\ncombination of primary term, continuations or extensions,\\nCongress capped the terms of geothermal leases at fifty years.\\nConsistent with this scheme, leases that receive forty-year\\ncontinuations under § 1005(a) after becoming productive\\nduring their ten-year primary terms are ineligible for the\\nshorter extensions allowed for unproven leases. BLM also\\noverlooks that § 1005(a) says nothing about unit plans, and\\nthat § 1005(g)(1) only authorizes extensions, on an individual\\nor a unit-wide basis, for leases that do not become productive\\nduring their primary terms or § 1005(c) extensions. Contrary\\nto BLM’s conclusion, it was entirely consistent for Congress\\nto have provided short unit-wide extensions under § 1005(c)\\nand (g)(1) for unproductive leases that do not individually\\nqualify for lengthy continuations during their primary terms.\\n\\n BLM also argues that because GSA § 1005(c) and (g)(2)\\nauthorize continuations on a unit-wide basis for leases that\\nproduce steam in commercial quantities during extended\\nterms, it “defies logic” to think that Congress did not intend\\nto provide unit-wide rewards for production achieved during\\ninitial primary lease terms. The reason Congress chose not to\\nincorporate the unitization principle into the GSA’s primary\\nterm provision is not fully explained by the statute, but in the\\nordinary case, “our obligation is to apply the statute as\\nCongress wrote it.” Hubbard v. United States, 514 U.S. 695,\\n703 (1995). We have explained why we are not persuaded by\\nBLM’s premise that § 1005(a) must allow continuations on\\na unitized basis because the GSA’s primary term provision\\nwas modeled after the MLA’s primary term provision.\\nFurther, given the nature of the emerging geothermal steam\\nmarket, Congress may have opted against unit-wide\\ncontinuations during primary terms as a way of incentivizing\\n\\f PIT RIVER TRIBE V. BLM 25\\n\\nexploration on all leases to define the contours of the\\nproductive area during the primary term. The decision not to\\nincorporate unit-wide continuations during the primary term\\nstill allows leaseholders to benefit from unitization through\\ncost and royalty sharing. It is also consistent with § 1017’s\\nmandatory review of unit plans every five years, and with the\\nrequirement that unit areas be constricted to eliminate leases\\nnot reasonably necessary to unit operations. See 30 U.S.C.\\n§ 1017. Congress may have been concerned that granting\\nunit-wide continuations during the initial ten-year term would\\nimpede development by encouraging operators to select\\ndrilling targets based on whether leases were committed to\\nunits, rather than on the areas with the greatest potential for\\nproduction. This is the very concern BLM expressed in 1995.\\nWhatever the case, on the record before us, we do not agree\\nwith BLM’s assertion that it defies logic to conclude that\\nCongress did not intend to authorize production-based\\ncontinuations on a unitized basis during primary terms.\\n\\n BLM’s final argument is that § 1005(a)’s legislative\\nhistory shows that Congress intended the terms of all leases\\nin a unit to benefit if any one of them becomes productive\\nduring the primary term. BLM points us to a 1970 House\\nReport:\\n\\n Section 6 of the bill provides that each\\n geothermal lease shall be for a primary term\\n of 10 years. If steam is produced or utilized\\n in commercial quantities within this term the\\n lease will continue for so long thereafter as\\n such production or utilization continues, but\\n not to exceed an additional 40 years. If at the\\n end of such 40 years steam continues to be\\n produced in commercial quantities, and the\\n\\f26 PIT RIVER TRIBE V. BLM\\n\\n land is not needed for other purposes, the\\n lessee is given a preferential right to a renewal\\n of the lease for a second 40-year period in\\n accordance with such terms and conditions as\\n the Secretary deems appropriate. Comparable\\n provision is also made respecting lands leased\\n for development under approved cooperative\\n and unit plans.\\n\\nH.R. Rep. No. 91-1544, at 7 (1970) (emphasis added). BLM\\nargues that the “comparable provision” for leases committed\\nto unit plans must be § 1017. But it is equally likely that,\\nwhen Congress passed the GSA in 1970, this passage was\\nintended to differentiate § 1005(a) from § 1005(c), the only\\nprovision then authorizing development on a unit-wide\\nbasis.16 In other words, the passage that BLM relies on may\\nhighlight that Congress adopted a lease-by-lease approach for\\nproduction-based continuations during the primary term in\\n§ 1005(a), and that § 1005(c) authorized a separate but\\ncomparable unit-wide approach for five-year extensions\\ngranted after primary terms, based on drilling. Absent further\\ncontext or explanation in the House Report, we find its\\nreference to “comparable provision” to be inconclusive. See\\nFlores-Arellano v. INS, 5 F.3d 360, 362 (9th Cir. 1993)\\n(ruling that inconclusive legislative history was insufficient\\nto overcome unambiguous statutory text). It is BLM’s burden\\nto provide a compelling reason for us to depart from the plain\\nlanguage of § 1005(a), and we conclude it has not met that\\nburden here.\\n\\n\\n\\n\\n 16\\n Section 1005(g)—the other provision authorizing development on\\na unit-wide basis—was not added to the GSA until 1988.\\n\\f PIT RIVER TRIBE V. BLM 27\\n\\n VI. Conclusion\\n\\n The statutory meaning of 30 U.S.C. § 1005(a) is clear and\\nunambiguous. It only permits production-based continuations\\non a lease-by-lease basis, not on a unit-wide basis. We\\ntherefore affirm the district court’s order granting summary\\njudgment in favor of the appellees.\\n\\n AFFIRMED.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4439782/\", \"author_raw\": \"CHRISTEN, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WILLIAM A FLETCHER"},"judge2":{"kind":"string","value":"MORGAN CHRISTEN"},"judge3":{"kind":"string","value":"ROSLYN O SILVER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4662529/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Pit River Tribe v. Blm\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nPIT RIVER TRIBE; NATIVE No. 17-15616\nCOALITION FOR MEDICINE\nLAKE HIGHLANDS DEFENSE; D.C. Nos.\nMOUNT SHASTA 2:04-cv-00956-JAM-AC\nBIOREGIONAL ECOLOGY 2:04-cv-00969-JAM-AC\nCENTER; SAVE MEDICINE\nLAKE COALITION; MEDICINE\nLAKE CITIZENS FOR QUALITY OPINION\nENVIRONMENT,\n Plaintiffs-Appellees,\n\n v.\n\nBUREAU OF LAND\nMANAGEMENT; U.S.\nDEPARTMENT OF THE\nINTERIOR,\n Defendants-Appellants.\n\n\n Appeal from the United States District Court\n for the Eastern District of California\n John A. Mendez, District Judge, Presiding\n\n Argued and Submitted May 14, 2019\n Seattle, Washington\n\n Filed September 19, 2019\n\f2 PIT RIVER TRIBE V. BLM\n\nBefore: William A. Fletcher and Morgan Christen, Circuit\n Judges, and Roslyn O. Silver,* District Judge.\n\n Opinion by Judge Christen\n\n\n SUMMARY**\n\n\n Geothermal Steam Act / Federal Leases\n\n The panel affirmed the district court’s summary judgment\nin favor of Pit River Tribe and several environmental\norganizations in their action against federal agencies\nresponsible for administering twenty-six unproven\ngeothermal leases located in California’s Medicine Lake\nHighlands.\n\n Pit River alleged that the Bureau of Land Management’s\ndecision to continue the terms of the unproven leases for up\nto forty years violated the Geothermal Steam Act (“GSA”).\n\n Section 1017 of the GSA authorizes the Secretary of the\nInterior to approve cooperative or unit plans to manage\nmultiple geothermal leases as a unit, and the Secretary must\nreview such unit plans every five years and eliminate any\nlease not reasonably necessary for unit operations under the\nplan. Section 1005(a) of the GSA provides that geothermal\n\n\n *\n The Honorable Roslyn O. Silver, United States District Judge for the\nDistrict of Arizona, sitting by designation.\n **\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f PIT RIVER TRIBE V. BLM 3\n\nleases on federal land have primary lease terms of ten years,\nand allows the leases to be continued for as long as\ngeothermal steam is produced in commercial quantities.\nSection 1005(c) states that leases subject to “unit plans” may\nbe extended even if not productive during the initial ten-year\nterm under certain conditions.\n\n The panel held that the statutory meaning of 30 U.S.C.\n§ 1005(a) was clear and unambiguous. The panel held that\nthe provision permitted production-based forty-year\ncontinuations at the end of the primary term only on a lease-\nby-lease basis, not on a unit-wide basis. It was BLM’s\nburden to provide a compelling reason for the court to depart\nfrom the plain language of § 1005(a), and the panel\nconcluded that it had not met that burden here.\n\n\n COUNSEL\n\nMary Gabrielle Sprague (argued) and Ellen J. Durkee,\nAppellate Section; Eric Grant, Deputy Assistant Attorney\nGeneral; Jeffrey Bossert Clark, Acting Assistant Attorney\nGeneral; Environment and Natural Resources Division,\nUnited States Department of Justice, Washington, D.C.; for\nDefendants-Appellants.\n\nSamuel Lazerwitz (argued) and Caleb G. Wright (argued),\nCertified Law Students; Alicia E. Thesing, Isaac C. Cheng,\nand Deborah Ann Sivas, Supervising Attorneys;\nEnvironmental Law Clinic, Mills Legal Clinic at Stanford\nLaw School, Stanford, California; for Plaintiffs-Appellees.\n\f4 PIT RIVER TRIBE V. BLM\n\n OPINION\n\nCHRISTEN, Circuit Judge:\n\n The Bureau of Land Management and the Department of\nthe Interior (collectively, BLM) appeal the district court’s\norder granting summary judgment in favor of the Pit River\nTribe and several local and regional environmental\norganizations (collectively, Pit River). We have jurisdiction\npursuant to 28 U.S.C. § 1291 and we affirm the district\ncourt’s judgment.\n\n I. Background\n\n Pit River filed this action against the federal agencies\nresponsible for administering twenty-six unproven\ngeothermal leases located in California’s Medicine Lake\nHighlands. We refer to these leases as “unproven” because\nBLM has not determined that they are capable of producing\ngeothermal steam in commercial quantities. See Pit River\nTribe v. Bureau of Land Mgmt., 793 F.3d 1147, 1149–50 (9th\nCir. 2015) (Pit River III).1 Calpine Corporation, the current\nleaseholder, was also named as a defendant but it did not\nappeal the judgment the district court entered on remand from\nour court. The operative complaint alleges that BLM’s\ndecision to continue the terms of the unproven leases for up\nto forty years violated the Geothermal Steam Act (GSA), the\nNational Environmental Policy Act (NEPA), the National\n\n\n\n\n 1\n Our decision in Pit River III provides a detailed history of the case.\nWe recount that history only as necessary to resolve this appeal.\n\f PIT RIVER TRIBE V. BLM 5\n\nHistoric Preservation Act (NHPA), and the Indian-fiduciary-\ntrust doctrine.2 Id. at 1148.\n\n The subject leases are located within the Glass Mountain\nUnit Plan. The parties agree that the GSA requires that any\nlease be allowed to continue if it is producing geothermal\nsteam in commercial quantities, or is shown to be capable of\ndoing so, within its primary ten-year term. See 30 U.S.C.\n§ 1005(a) (1994).3 The parties’ dispute centers on whether all\nleases committed to a “unit plan” may be collectively\ncontinued for up to forty years if any single lease in the unit\nbecomes productive during the primary term. Pit River\nargues that § 1005(a) allows production-based continuations\nto be granted only on an individual basis. BLM argues that\n§ 1005(a) allows production-based continuations to be\ngranted to all leases in a unit if any one of them becomes\nproductive during the primary term. BLM’s interpretation of\nthe GSA is heavily informed by its view that the Mineral\nLeasing Act (MLA), 30 U.S.C. §§ 221i–236a (1964),\nprovides an important backdrop against which the GSA must\nbe analyzed.4\n\n\n\n\n 2\n The complaint also alleges a violation of the Freedom of\nInformation Act (FOIA), but the district court’s ruling on the FOIA issue\nwas not appealed.\n 3\n Unless otherwise specified, all citations to the GSA refer to the 1994\nedition of the United States Code because the parties agree that this\niteration of the GSA applies to their dispute.\n 4\n Unless otherwise noted, all citations to the MLA’s provisions are to\nthe 1964 edition of the United States Code, which was in effect when the\nGSA was enacted.\n\f6 PIT RIVER TRIBE V. BLM\n\n II. Procedural History\n\n This is the second time our court has addressed the\ncontroversy concerning the duration of the leases in the Glass\nMountain Unit. See Pit River III, 793 F.3d at 1148. In July\nof 2013, the district court granted judgment on the pleadings\nin favor of BLM on the grounds that Pit River lacked\nprudential standing to assert its GSA claim. Id. at 1154–55.\nWe reversed the district court’s judgment, ruling that Pit\nRiver’s claim fell within the GSA’s “zone of interests,” id. at\n1155–58, and we remanded to the district court so it could\nconsider the merits of the claims.\n\n On remand from Pit River III, the district court granted\nsummary judgment in favor of Pit River. The court ruled\nthat, as it was written in 1994, the GSA’s primary term\nprovision was unambiguous and did not authorize BLM to\ncontinue the twenty-six unproven leases for forty years\nsimply because they were part of a unit that contained a\nsingle proven lease. The district court reasoned that because\nCongress referred to “unit plans” in § 1005(c) and (g), but\nomitted this term from § 1005(a), “Congress did not\ncontemplate the additional [forty]-year term for\nnonproductive leases committed to a unit plan under\n[§] 1005(a).” In an amended judgment, the district court\nvacated and set aside BLM’s May 18, 1998 decision granting\nthe lease continuations, and remanded the proceedings to the\nagency to determine whether to extend or cancel the twenty-\nsix leases pursuant to the GSA and the implementing\nregulations in effect as of May 1998. The district court\nobserved that its judgment did not affect BLM’s decision to\ncontinue the single proven lease, and that Pit River’s NEPA,\nNHPA, and fiduciary duty claims were mooted by the court’s\n\f PIT RIVER TRIBE V. BLM 7\n\nvacatur of BLM’s 1998 decision letters. BLM appeals the\ndistrict court’s judgment.\n\n III. Standard of Review\n\n We review de novo an order granting summary judgment.\nCty. of Amador v. U.S. Dep’t of the Interior, 872 F.3d 1012,\n1020 (9th Cir. 2017).\n\n IV. Jurisdiction\n\n We must first assure ourselves of our jurisdiction to hear\nthis appeal because the district court’s order granting\nsummary judgment vacated BLM’s 1998 decision letters and\nremanded to the agency. See Pit River Tribe v. U.S. Forest\nServ., 615 F.3d 1069, 1075 (9th Cir. 2010). “[R]emand\norders are generally not ‘final’ decisions for purposes of\nsection 1291[,]” id., but a remand order is considered final\nand appealable where: “(1) the district court conclusively\nresolves a separable legal issue, (2) the remand order forces\nthe agency to apply a potentially erroneous rule which may\nresult in a wasted proceeding, and (3) review would, as a\npractical matter, be foreclosed if an immediate appeal were\nunavailable.” Id. (quoting Alsea Valley All. v. Dep’t of\nCommerce, 358 F.3d 1181, 1184 (9th Cir. 2004)). Here,\nbecause the district court determined that 30 U.S.C. § 1005(a)\ndid not authorize BLM to continue the unproven leases based\non the single proven lease, BLM will be constrained by this\ninterpretation on remand. If the district court’s interpretation\nis incorrect, the remand will result in a wasted proceeding.\nMoreover, review of the district court’s interpretation will be\nforeclosed absent immediate appeal because, after remand to\nthe agency, BLM cannot later appeal the result of its own\nagency decision. See Alsea Valley All., 358 F.3d at 1184;\n\f8 PIT RIVER TRIBE V. BLM\n\nChugach Alaska Corp. v. Lujan, 915 F.2d 454, 457 (9th Cir.\n1990). For these reasons, we conclude that we have\njurisdiction to hear this appeal.\n\n V. Discussion\n\n A. The Geothermal Steam Act\n\n This appeal requires us to interpret the GSA, 30 U.S.C.\n§§ 1001–1028 (1994). Congress enacted the GSA in 1970 “to\npromote the development of geothermal leases on federal\nlands.” Geo-Energy Partners-1983 Ltd. v. Salazar, 613 F.3d\n946, 949 (9th Cir. 2010). Geothermal resources include “the\nheat or energy found in steam, hot water, or geothermal\nformations.” Id. The GSA was adopted in the wake of the\nMLA, which governs oil and gas leases on federal lands. BP\nAm. Prod. Co. v. Burton, 549 U.S. 84, 87 (2006). A brief\nexplanation of the MLA’s unitization provision provides\nhelpful background.\n\n When Congress enacted the MLA, oil and gas were\nextracted under the common-law “rule of capture,” which\nencouraged landowners to drill wells on individual leases to\ncapture as much oil or gas as possible. See Frank Sylvester\n& Robert W. Malmsheimer, Oil and Gas Spacing and Forced\nPooling Requirements: How States Balance Energy\nDevelopment and Landowner Rights, 40 U. Dayton L. Rev.\n47, 49 (2015). The rule of capture encouraged overdrilling\nthat dissipated reservoir pressure and ultimately led to\ninefficient oil and gas recovery. See Northcutt Ely, The\nConservation of Oil, 51 Harv. L. Rev. 1209, 1219–22 (1938).\nThe practice of unitization emerged in response to these\ninefficiencies. See Sylvester, et al., supra at 49–50.\nUnitization allows an entire oil or gas field “to be operated as\n\f PIT RIVER TRIBE V. BLM 9\n\na single entity, without regard to surface boundary issues,”\nsee Norfolk Energy, Inc. v. Hodel, 898 F.2d 1435, 1438 (9th\nCir. 1990) (internal quotation marks omitted), i.e., it allows\ndrilling and production operations occurring on a single lease\nwithin a unit to be deemed performed on all other leases\nwithin the unit for purposes of showing that bona fide\ndevelopment efforts have been made, or for sharing royalties.\nSee, e.g., 30 U.S.C. § 1017; 30 U.S.C. § 226(j); 43 C.F.R.\n§§ 3280–3287 (1997). By limiting the need to drill on each\nlease within a unit, unitization lessens the likelihood that an\noil or gas reservoir will suffer from overdrilling and depleted\nreservoir pressure. Congress incorporated the unitization\nconcept into the MLA, granting the Secretary of the Interior\nthe authority to approve unit plans of development when\ndoing so is in the public interest. See Pub. L. No. 71-853, 46\nStat. 1523. Although significant differences exist between\nthe MLA and the GSA, the GSA also permits lessees to join\ntogether under unit plans of development. See 30 U.S.C.\n§ 1017; 43 C.F.R. § 3280.0–2 (1997).\n\n The GSA refers to production-based “continuations” and\ndrilling-based “extensions”—concepts articulated in the\nMLA—but neither the MLA nor the GSA explicitly define\nthese terms. See 30 U.S.C. §§ 221i–236a; 30 U.S.C. § 1001.\nThe parties agreed at oral argument that, like the MLA, the\nGSA allows for lease continuations based on production, and\nlease extensions based on exploratory drilling activities.5\n\n\n\n 5\n We note that the Interior Board of Land Appeals generally interprets\na continuation based on production as a prolonged lease term that is\n“indefinite and is allowed when a lease is presently capable of producing\noil or gas” in commercial quantities, while an “‘extension by drilling’ . . .\nrequires that a lessee conduct actual drilling operations on the last day of\n\f10 PIT RIVER TRIBE V. BLM\n\n Pit River’s claims implicate §§ 1005 and 1017 of the\nGSA, so we discuss these provisions in some detail. Section\n1017 governs unit plans. Section 1005 governs the duration\nof geothermal lease terms.\n\n 1. 30 U.S.C. § 1017: The Unitization Provision\n\n Section 1017 of the GSA authorizes the Secretary of the\nInterior to approve cooperative or unit plans to manage\nmultiple leases as a unit “[f]or the purpose of properly\nconserving the natural resources of any geothermal pool,\nfield, or like area.” 30 U.S.C. § 1017. The Secretary must\nreview such unit plans every five years “and, after notice and\nopportunity for comment, eliminate from inclusion in such\nplan any lease or part of a lease not regarded as reasonably\nnecessary to cooperative or unit operations under the plan.”\nPit River III, 793 F.3d at 1150 (quoting 30 U.S.C. § 1017).\n\n 2. 30 U.S.C. § 1005: The Lease Duration\n Provisions\n\n Section 1005(a) of the GSA provides that geothermal\nleases on federal land have primary lease terms of ten years.\n30 U.S.C. § 1005(a). If geothermal steam is produced in\ncommercial quantities during the ten-year primary term,\n§ 1005(a) allows the lease to be continued for as long as\ngeothermal steam is produced in commercial quantities, not\n\n\n\n\nthe lease term with an intent to complete a producing well.” Coastal\nPetroleum Co., 190 IBLA 347, 352, 2017 WL 3263839, at *4 (July 25,\n2017).\n\f PIT RIVER TRIBE V. BLM 11\n\nto exceed an additional forty years.6 Id. At the end of the\nfirst forty-year term granted pursuant to § 1005(a), the GSA\naffords a preferential right of renewal for a second forty-year\nterm if geothermal steam is still being produced in\ncommercial quantities and the land is not needed for other\npurposes. 30 U.S.C. § 1005(b).\n\n Neither § 1005(a) nor § 1005(b) refer to “unit plans,” but\n§ 1005(c) does. It is entitled “Cooperative or unit plan for\ndrilling operations; extension of term; renewal.” 30 U.S.C.\n§ 1005(c). Section 1005(c) states that leases subject to unit\nplans may be extended, even if the leases have not been\nproductive during their initial ten-year primary terms, if\nactual drilling operations begin prior to the end of the primary\nlease terms and are being diligently prosecuted.7 Id. For\nleases still not producing steam nor shown to be capable of\nproducing in commercial quantities by the end of an\nextension granted pursuant to § 1005(c), the agency may\n\n\n 6\n 30 U.S.C. § 1005(a) specifies that “[i]f geothermal steam is\nproduced or utilized in commercial quantities within this term, such lease\nshall continue for so long thereafter as geothermal steam is produced or\nutilized in commercial quantities, but such continuation shall not exceed\nan additional forty years.” In turn, 30 U.S.C. § 1005(d) defines “produced\nor utilized in commercial quantities” to include a showing that a well is\n“capable of producing geothermal steam in commercial quantities.”\n(emphasis added).\n 7\n 30 U.S.C. § 1005(c) provides, inter alia, that a lease for which:\n\n actual drilling operations were commenced prior to the\n end of its primary term and are being diligently\n prosecuted at that time shall be extended for five years\n and so long thereafter, but not more than thirty-five\n years, as geothermal steam is produced or utilized in\n commercial quantities.\n\f12 PIT RIVER TRIBE V. BLM\n\nauthorize one or two additional five-year extensions if the\nlessee has made certain bona fide efforts.8 30 U.S.C.\n§ 1005(g)(1). Notably, § 1005(g)(1) also expressly refers to\nleases operated under “approved cooperative or unit plan[s]\nof development.” Id. If a lease extended pursuant to\n§ 1005(g)(1) begins producing geothermal steam in\ncommercial quantities during a § 1005(g)(1) extension,\n§ 1005(g)(2) provides that the lease shall be continued for up\nto twenty-five additional years if it was previously extended\nunder § 1005(c), “for a total of [fifty] years,” or for up to\nthirty additional years (but not to exceed a total of fifty years)\n\n\n\n\n 8\n 30 U.S.C. § 1005(g)(1) states:\n\n (1) Any geothermal lease issued pursuant to this\n chapter for land on which, or for which under an\n approved cooperative or unit plan of development or\n operation, geothermal steam has not been produced or\n utilized in commercial quantities by the end of its\n primary term, or by the end of any extension provided\n by subsection (c) of this section, may be extended for\n successive 5-year periods, but totaling not more than\n 10 years, if the Secretary determines that the lessee has\n met the bona fide effort requirement of subsection (h)\n of this section, and either of the following:\n\n (A) [T]he payment in lieu of commercial quantities\n production requirement of subsection (i) of this\n section.\n\n (B) The significant expenditure requirement of\n subsection (j) of this section.\n\f PIT RIVER TRIBE V. BLM 13\n\nif it was only previously extended pursuant to § 1005(g)(1).9\n30 U.S.C. § 1005(g)(2).\n\n B. The Glass Mountain Leases\n\n Three years after Congress enacted the GSA, BLM\npromulgated regulations authorizing holders of geothermal\nleases to enter into unit agreements for the development of\ngeothermal resources. See 38 Fed. Reg. 35,068, 35,073–75\n(Dec. 21, 1973); see also 43 C.F.R. §§ 3280.0–1 to 3286.1\n(1997). These regulations included a model unit agreement.\nSee 38 Fed. Reg. at 35,075–80; see also 43 C.F.R. § 3286.1\n(1997). In 1982, Calpine’s predecessors entered into the\nGlass Mountain Unit Agreement, which tracked the\nregulations’ model agreement.10\n\n The twenty-six unproven leases at issue in this\nappeal—plus a twenty-seventh “proven lease” that BLM\ndetermined was capable of producing geothermal steam in\ncommercial quantities—were eventually committed to the\nGlass Mountain Unit Agreement. Pit River III, 793 F.3d\nat 1149–51. The Agreement established a “Unit Area” and\n\n 9\n 30 U.S.C. § 1005(g)(2) provides:\n\n (2) A lease extended pursuant to paragraph (1) shall\n continue so long thereafter as geothermal steam is\n produced or utilized in commercial quantities, but such\n continuation shall not exceed an additional 25 years, for\n a total of 50 years, if such lease was also the subject of\n an extension under subsection (c) of this section or an\n additional 30 years, for a total of 50 years, if such lease\n is only extended pursuant to paragraph (1).\n 10\n We do not separately identify Calpine’s predecessors to avoid\nconfusion and because the predecessors’ actions do not affect our analysis.\n\f14 PIT RIVER TRIBE V. BLM\n\n“Participating Area.” The Unit Area is the area comprised of\nall leases subject to the Agreement, and the Participating Area\nis the “part of the Unit Area which is deemed to be\nproductive,” i.e., it is “all land then regarded as reasonably\nproved to be productive from a pool or deposit discovered or\ndeveloped[.]” By the fifth anniversary of the Participating\nArea’s effective date, the Agreement requires that all portions\nof unitized lands not entitled to be included in the\nParticipating Area must be automatically eliminated from the\nAgreement and from the Unit Area, unless drilling operations\nare in progress on an exploratory well and these operations\ncontinue diligently.\n\n In 1989, BLM determined that a single lease in the Glass\nMountain Unit was capable of producing geothermal steam\nin commercial quantities. Pit River III, 793 F.3d at 1151. In\n1991 and 1992, at the request of Calpine’s predecessors,\nBLM’s California State Office extended the terms of twenty-\nfour unproven leases in the Glass Mountain Unit for five\nyears pursuant to § 1005(g)(1). BLM continued the term of\nthe single proven lease for up to forty additional years\npursuant to § 1005(a). Id. In the process of responding to the\npredecessors’ requests, BLM’s California State Office\ncommunicated with the Nevada State Office, “which advised\nthat [forty]-year lease continuations should be granted to all\nof the unproven Glass Mountain leases[.]” Id. The California\nOffice disagreed. Id. It concluded that “the ‘[forty-]year\nextension [under § 1005(a)] may only be applied to the lease\nwith the well capable of production and not to the other\ncommitted leases in the unit.’” Id. (second alteration in\noriginal). The California Office noted that § 1005(a) did not\nrefer to unit plans. Id.\n\f PIT RIVER TRIBE V. BLM 15\n\n In 1995, BLM sent Calpine’s predecessor a letter stating\nthat the predecessor was “in default of meeting reasonable\ndiligence in the unit,” and that the Glass Mountain Unit was\n“no longer of any significant benefit to the BLM or Forest\nService” because “[t]he unit has become an impediment to\ndevelopment by causing operators to select drilling targets on\nthe basis of whether a lease is or is not committed to the unit\ninstead of the area with the greatest potential to support a\ndevelopment project.” On June 3, 1996, BLM notified\nCalpine’s predecessor via an additional letter that a proposed\nParticipating Area should have been submitted in 1989, but\nthat due to agency delay and other circumstances, BLM\nwould allow submission of a proposed Participating Area\nwithin sixty days of receipt of the letter. Calpine’s\npredecessor submitted a proposed Participating Area on\nAugust 15, 1996.11\n\n BLM’s California State Office changed its interpretation\nof § 1005(a) in 1998. The California Office’s Program Lead,\nSean Hagerty, circulated an internal memo that sheds light on\nthe reasons for BLM’s changed position. Hagerty’s memo\ndescribed the prior disagreement between BLM’s California\nand Nevada Offices and explained that the California Office\nwas concerned about allowing the Glass Mountain Unit to\ncontinue for an indefinite period of time merely based on the\nsingle proven lease. In particular, “BLM was concerned over\nhow the Unit could be managed without any effective way of\nrequiring the unit operator . . . to conduct additional activities\nin the Unit prior to the submission of the initial Participating\nArea (PA).” The memo explained that BLM was initially\nuncertain whether the single proven lease, which was deemed\n\n 11\n This information was not part of the record in Pit River III, 793\nF.3d at 1152 n.6.\n\f16 PIT RIVER TRIBE V. BLM\n\ncapable of production but had not actually commenced\nproduction, was legally sufficient to require Calpine’s\npredecessor to submit an initial Participating Area. Because\nBLM subsequently decided that a well capable of production\nwas equivalent to a well actually in production, it requested\nand received a proposed Participating Area from Calpine’s\npredecessor. Hagerty’s memo concluded that, because the\nParticipating Area had been designated, “the Glass Mountain\nUnit boundary would contract down to the boundary of the\n[Participating Area],” and therefore “the Glass Mountain Unit\nAgreement no longer had an indefinite lifespan and could\nnow be managed in the public interest.” Hagerty\nrecommended that BLM grant an additional term of up to\nforty years to all leases committed to the Glass Mountain\nUnit.\n\n On May 18, 1998—five days after Hagerty circulated his\nmemo—BLM’s California Office issued decision letters\nvacating the 1991 and 1992 lease extensions for the unproven\nleases and continuing them for up to forty years pursuant to\n§ 1005(a).12 Pit River III, 793 F.3d at 1152. BLM explained\nthat the decision to grant the five-year lease extensions\npursuant to the regulation implementing § 1005(g)(1) “was in\nerror.” BLM further explained that all leases committed to\nthe Glass Mountain Unit should have been granted additional\nlease terms based on the paying-well determination for the\nsingle proven lease pursuant to the regulation implementing\n§ 1005(a) and (d).\n\n\n\n\n 12\n In total, BLM continued twenty-six unproven leases, which\nincluded two leases that were not previously extended in 1991 or 1992.\nPit River III, 793 F.3d at 1152 n.8.\n\f PIT RIVER TRIBE V. BLM 17\n\n C. Statutory Analysis\n\n It is clear that the GSA authorizes “continuations” based\non production, see 30 U.S.C. § 1005(a), and there is no\ndispute that the GSA authorizes five-year “extensions” based\non actual drilling or bona fide efforts. See § 1005(c), (g).\nBoth parties argue that 30 U.S.C. § 1005(a) is clear and\nunambiguous, but they advocate for opposite interpretations.\nBLM argues that § 1005(a), read in light of the GSA as a\nwhole and against the backdrop of the MLA, authorizes forty-\nyear continuations on a unit-wide basis once a single lease in\na unit is deemed productive. Pit River argues that § 1005(a)\nunambiguously authorizes forty-year continuations at the end\nof a primary term only on a lease-by-lease basis, not on a\nunitized basis.\n\n “We interpret a federal statute by ascertaining the intent\nof Congress and by giving effect to its legislative will[,]”\nbeginning with the statute’s language. Artichoke Joe’s Cal.\nGrand Casino v. Norton, 353 F.3d 712, 720 (9th Cir. 2003)\n(internal quotation marks omitted). We “presume that [the]\nlegislature says in a statute what it means and means in a\nstatute what it says.” BedRoc Ltd., LLC v. United States,\n541 U.S. 176, 183 (2004) (internal quotation marks omitted).\n“The plainness or ambiguity of statutory language is\ndetermined by reference to the language itself, the specific\ncontext in which the language is used, and the broader\ncontext of the statute as a whole.” Geo-Energy Partners-\n1983 Ltd., 613 F.3d at 956 (internal quotation marks omitted).\nIf “the language is not dispositive, we look to the\ncongressional intent revealed in the history and purposes of\nthe statutory scheme.” Artichoke Joe’s, 353 F.3d at 720\n(internal quotation marks omitted). “[I]f we find that the\nstatutory meaning is plain and unambiguous, then our ‘sole\n\f18 PIT RIVER TRIBE V. BLM\n\nfunction . . . is to enforce it according to its terms.’”\nHernandez v. Williams, Zinman & Parham PC, 829 F.3d\n1068, 1072 (9th Cir. 2016) (alteration in original) (quoting\nUnited States v. Ron Pair Enters., 489 U.S. 235, 241 (1989));\nsee Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,\n467 U.S. 837, 842–43 (1984) (“If the intent of Congress is\nclear, that is the end of the matter; for the court, as well as the\nagency, must give effect to the unambiguously expressed\nintent of Congress.”).\n\n We begin with the GSA’s text, and observe that § 1005(a)\ndoes not include the term “unit plan.” See 30 U.S.C.\n§ 1005(a). It is not our practice to read words into statutory\nprovisions, see United States v. Watkins, 278 F.3d 961, 965\n(9th Cir. 2002), as a statute’s plain language is “our primary\nguide to Congress’ preferred policy.” Sandoz Inc. v. Amgen\nInc., 137 S. Ct. 1664, 1678 (2017) (internal quotation marks\nomitted). Relatedly, we have observed that:\n\n It is a well-established canon of statutory\n interpretation that the use of different words\n or terms within a statute demonstrates that\n Congress intended to convey a different\n meaning for those words. Congress’s explicit\n decision to use one word over another in\n drafting a statute is material. It is a decision\n that is imbued with legal significance and\n should not be presumed to be random or\n devoid of meaning.\n\nSEC v. McCarthy, 322 F.3d 650, 656 (9th Cir. 2003) (internal\ncitations omitted). “[W]hen Congress includes particular\nlanguage in one section of a statute but omits it in another\nsection of the same Act, it is generally presumed that\n\f PIT RIVER TRIBE V. BLM 19\n\nCongress acts intentionally and purposely in the disparate\ninclusion or exclusion.” Barnhart v. Sigmon Coal Co.,\n534 U.S. 438, 452 (2002) (internal quotation marks omitted).\nWe conclude that the use of “unit plan” in § 1005(c) and\n(g)(1) expressly memorialized congressional intent to make\nshort lease extensions available on a unit-wide basis if leases\ndo not become productive during their primary terms but\nlease operators can show that drilling has commenced or\nother bona fide efforts have been made. In other words, we\nconclude that the omission of the term “unit plan” in\n§ 1005(a) is “imbued with legal significance.” McCarthy,\n322 F.3d at 656.\n\n BLM argues that Congress’s omission of the term “unit\nplan” from § 1005(a) is not a rejection of the unitization\nprinciple because the subsection must be read in conjunction\nwith the GSA as a whole and against the historical backdrop\nof the MLA. This argument is premised on BLM’s unstated\nassertion that geothermal steam reservoirs function in the\nsame way that underground pools of oil and gas do. Prior to\noral argument, the record contained no support for this\nassertion. After oral argument, BLM submitted a letter\nexplaining that overdrilling in geothermal fields results in a\nloss of well pressure, just like oil and gas fields. As support,\nBLM’s letter cited a public document that reported on the\nrapid development of a northern California hydrothermal\nsystem and the resulting loss of production well pressure. Pit\nRiver has not had a chance to respond, but even assuming that\ngeothermal reservoirs function the same way as oil and gas\nreservoirs do, the general framework Congress adopted in the\nMLA does not overcome the plain language Congress chose\nfor the GSA’s primary term and unitization provisions.\n\f20 PIT RIVER TRIBE V. BLM\n\n BLM argues that the MLA provides important context\nand that the incorporation of the unitization principle into the\nMLA suggests Congress intended to adopt the same statutory\nscheme for the GSA. We disagree. Congress enacted the\nMLA decades before it enacted the GSA, and we assume\nCongress is knowledgeable about existing law when it enacts\nnew legislation. See Miles v. Apex Marine Corp., 498 U.S.\n19, 32 (1990); see also Cty. of Amador, 872 F.3d at 1022\n(“[U]nderstanding the historical context in which a statute\nwas passed can help to elucidate the statute’s purpose and the\nmeaning of statutory terms and phrases.”). The GSA’s\nsponsor understood the 1970 bill to generally permit the\nSecretary of Interior to lease public lands in “much the same\nmanner” as the Secretary was authorized to do by the MLA.\nS. Rep. No. 91-1160, at 4 (1970). But Congress recognized\nthat efforts to harness geothermal steam in an emerging\nmarket posed unique challenges. See H.R. Rep. No. 91-1544,\nat 3–4 (1970). By 1970, the MLA was in its fiftieth year of\nregulating oil and gas leasing but the geothermal steam\nindustry was still in its infancy. Congress acknowledged that\nthe mining and mineral leasing statutes “lack many of the\nrequirements necessary to encourage [geothermal steam’s]\norderly development.” Id. at 5. The hope was that the GSA\nwould “establish a framework that will make this risk-laden,\nrelatively untried industry an attractive investment in the\npublic interest.” S. Rep. No. 91-1160, at 9. Recognizing the\nneed to encourage geothermal exploration by allowing\nleaseholders time to get the resource to market—or to bring\nthe market to the geothermal steam by building\ninfrastructure—the GSA’s original sponsor acknowledged\n“there may be some reasonable delay beyond the expiration\nof the primary term before a generating facility can be\ninstalled to receive the steam and commence actual power\n\f PIT RIVER TRIBE V. BLM 21\n\nproduction.”13 S. Rep. No. 91-1160, at 8. Contrary to BLM’s\nargument, the text of the GSA, read as a whole, demonstrates\nthat Congress deviated from the MLA when it adopted the\nGSA, perhaps because it was aware of the need to\naccommodate the uniquely-situated geothermal steam\ntechnology and developing market.\n\n A comparison of the GSA’s primary term provision,\n§ 1005(a), and the MLA’s primary term provision, 30 U.S.C.\n§ 226(e), reveals notable differences. Section 226(e) is\nentitled “Primary terms” and it expressly incorporates the\nphrase “unit plan.” Section 226(e) governs primary lease\nterm continuations and extensions thereafter. Congress did\nnot adopt § 226(e) wholesale when it enacted the GSA;\nrather, it split this provision into two subsections. Section\n1005(a) authorizes primary term continuations and § 1005(c)\nseparately authorizes post-primary term extensions and\nproduction-based continuations. BLM describes the decision\nto divide § 226(e) into § 1005(a) and (c) in the GSA as a\nstylistic choice, but we are mindful that Congress could have\nreplicated the MLA’s primary term provision (including the\n“unit plan” language) directly into the statutory text of GSA\n§ 1005(a), and it did not do so.\n\n BLM goes on to argue that the GSA provision authorizing\nunit plans, 30 U.S.C. § 1017, authorizes § 1005(a)’s\nproduction-based continuations to be granted on a unit-wide\n\n\n 13\n Indeed, even as of 1988, Congress acknowledged the challenges\ninvolved in harnessing geothermal energy. H.R. Rep. No. 100-664, at 6\n(1988) (“Unlike coal, oil and gas which can be transported to power\nproduction facilities, the steam from a geothermal well cannot be\ntransported more than two miles because of heat dissipation,” and must be\nconverted to electricity at or near the well site.).\n\f22 PIT RIVER TRIBE V. BLM\n\nbasis because § 1017 is fairly read to broadly incorporate the\nMLA’s unitization framework into the GSA. We are not\npersuaded that so much can be read into § 1017. First,\nBLM’s reasoning “would require us to assume that Congress\nchose a surprisingly indirect route to convey an important and\neasily expressed message.” Landgraf v. USI Film Prods.,\n511 U.S. 244, 262 (1994). See generally Zachary v. Cal.\nBank & Tr., 811 F.3d 1191, 1198–99 (9th Cir. 2016)\n(rejecting statutory reading that reflected a policy choice\nCongress could have made “in a far more straightforward\nmanner”). Section 1017 authorizes unit agreements and\nconstriction of unit plans, requiring that, no more than five\nyears after approval of a unit plan (and at least every five\nyears thereafter), the Secretary of the Interior must eliminate\nleases “not regarded as reasonably necessary to . . . unit\noperations.”14 30 U.S.C. § 1017. Section 1017 further\nprovides that leases eliminated from a unit by the constriction\nprocess may receive extensions pursuant to § 1005(c) and (g)\nonly if they separately qualify.15 Id. The language in § 1017\nrepresents a significant departure from the MLA’s corollary\nprovision governing unit plans, MLA § 226(j). The MLA\nallows lessees to form unit plans for development, but it\nexpressly allows leases to be continued indefinitely on a unit-\nwide basis—for as long as production continues. See\n30 U.S.C. § 226(j). Setting aside renewals authorized by\n\n\n 14\n Section 1017 also provides that this “elimination shall be based on\nscientific evidence, and shall occur only when it is determined by the\nSecretary to be for the purpose of conserving and properly managing the\ngeothermal resource.”\n 15\n BLM argues that this language reaffirms the unitization principle.\nBut the impact of this language is limited. It merely confirms that leases\nconstricted from a unit plan must individually qualify for extensions under\n§ 1005(c) or (g); it says nothing about continuations under § 1005(a).\n\f PIT RIVER TRIBE V. BLM 23\n\n§ 1005(b) and (g)(3), all GSA lease terms are capped at fifty\nyears. The MLA also differs from the GSA by not requiring\nplan review every five years for constriction of the unit plan.\nSee id. In sum, we agree that the MLA provides context for\nconsidering the terms of the GSA, but it cannot be doubted\nthat Congress varied from the MLA when it fashioned\n§§ 1005 and 1017, and the MLA’s unitization framework\ndoes not require the conclusion BLM urges us to reach.\n\n BLM next argues that the following language in\n§ 1005(g)(1) demonstrates that § 1005(a) authorizes\ncontinuations on a unit-wide basis:\n\n Any geothermal lease issued pursuant to this\n chapter for land on which, or for which under\n an approved cooperative or unit plan of\n development or operation, geothermal steam\n has not been produced or utilized in\n commercial quantities by the end of its\n primary term, or by the end of any extension\n provided by subsection (c) . . . may be\n extended for successive 5-year periods[.]\n\n§ 1005(g)(1). Congress added this provision in 1988 to help\nnon-productive leases withstand adverse market conditions\ncreated by a world energy glut. See H.R. Rep. No. 100-664,\nat 6 (1988). As BLM’s argument goes, because § 1005(g)(1)\nallows unproductive leases in unit plans to be extended for\nfive years on a unit-wide basis if they remain unproductive at\nthe end of their primary terms, and because it also provides\nthat leases are ineligible for § 1005(g)(1) extensions if they\nhave received § 1005(a) continuations, then § 1005(g)(1)\nmust be read as confirmation that § 1005(a) authorizes\nproduction-based continuations on a unit-wide basis. Again,\n\f24 PIT RIVER TRIBE V. BLM\n\nwe are not persuaded. BLM’s reasoning overlooks the most\nstraightforward reading of the statute: Regardless of the\ncombination of primary term, continuations or extensions,\nCongress capped the terms of geothermal leases at fifty years.\nConsistent with this scheme, leases that receive forty-year\ncontinuations under § 1005(a) after becoming productive\nduring their ten-year primary terms are ineligible for the\nshorter extensions allowed for unproven leases. BLM also\noverlooks that § 1005(a) says nothing about unit plans, and\nthat § 1005(g)(1) only authorizes extensions, on an individual\nor a unit-wide basis, for leases that do not become productive\nduring their primary terms or § 1005(c) extensions. Contrary\nto BLM’s conclusion, it was entirely consistent for Congress\nto have provided short unit-wide extensions under § 1005(c)\nand (g)(1) for unproductive leases that do not individually\nqualify for lengthy continuations during their primary terms.\n\n BLM also argues that because GSA § 1005(c) and (g)(2)\nauthorize continuations on a unit-wide basis for leases that\nproduce steam in commercial quantities during extended\nterms, it “defies logic” to think that Congress did not intend\nto provide unit-wide rewards for production achieved during\ninitial primary lease terms. The reason Congress chose not to\nincorporate the unitization principle into the GSA’s primary\nterm provision is not fully explained by the statute, but in the\nordinary case, “our obligation is to apply the statute as\nCongress wrote it.” Hubbard v. United States, 514 U.S. 695,\n703 (1995). We have explained why we are not persuaded by\nBLM’s premise that § 1005(a) must allow continuations on\na unitized basis because the GSA’s primary term provision\nwas modeled after the MLA’s primary term provision.\nFurther, given the nature of the emerging geothermal steam\nmarket, Congress may have opted against unit-wide\ncontinuations during primary terms as a way of incentivizing\n\f PIT RIVER TRIBE V. BLM 25\n\nexploration on all leases to define the contours of the\nproductive area during the primary term. The decision not to\nincorporate unit-wide continuations during the primary term\nstill allows leaseholders to benefit from unitization through\ncost and royalty sharing. It is also consistent with § 1017’s\nmandatory review of unit plans every five years, and with the\nrequirement that unit areas be constricted to eliminate leases\nnot reasonably necessary to unit operations. See 30 U.S.C.\n§ 1017. Congress may have been concerned that granting\nunit-wide continuations during the initial ten-year term would\nimpede development by encouraging operators to select\ndrilling targets based on whether leases were committed to\nunits, rather than on the areas with the greatest potential for\nproduction. This is the very concern BLM expressed in 1995.\nWhatever the case, on the record before us, we do not agree\nwith BLM’s assertion that it defies logic to conclude that\nCongress did not intend to authorize production-based\ncontinuations on a unitized basis during primary terms.\n\n BLM’s final argument is that § 1005(a)’s legislative\nhistory shows that Congress intended the terms of all leases\nin a unit to benefit if any one of them becomes productive\nduring the primary term. BLM points us to a 1970 House\nReport:\n\n Section 6 of the bill provides that each\n geothermal lease shall be for a primary term\n of 10 years. If steam is produced or utilized\n in commercial quantities within this term the\n lease will continue for so long thereafter as\n such production or utilization continues, but\n not to exceed an additional 40 years. If at the\n end of such 40 years steam continues to be\n produced in commercial quantities, and the\n\f26 PIT RIVER TRIBE V. BLM\n\n land is not needed for other purposes, the\n lessee is given a preferential right to a renewal\n of the lease for a second 40-year period in\n accordance with such terms and conditions as\n the Secretary deems appropriate. Comparable\n provision is also made respecting lands leased\n for development under approved cooperative\n and unit plans.\n\nH.R. Rep. No. 91-1544, at 7 (1970) (emphasis added). BLM\nargues that the “comparable provision” for leases committed\nto unit plans must be § 1017. But it is equally likely that,\nwhen Congress passed the GSA in 1970, this passage was\nintended to differentiate § 1005(a) from § 1005(c), the only\nprovision then authorizing development on a unit-wide\nbasis.16 In other words, the passage that BLM relies on may\nhighlight that Congress adopted a lease-by-lease approach for\nproduction-based continuations during the primary term in\n§ 1005(a), and that § 1005(c) authorized a separate but\ncomparable unit-wide approach for five-year extensions\ngranted after primary terms, based on drilling. Absent further\ncontext or explanation in the House Report, we find its\nreference to “comparable provision” to be inconclusive. See\nFlores-Arellano v. INS, 5 F.3d 360, 362 (9th Cir. 1993)\n(ruling that inconclusive legislative history was insufficient\nto overcome unambiguous statutory text). It is BLM’s burden\nto provide a compelling reason for us to depart from the plain\nlanguage of § 1005(a), and we conclude it has not met that\nburden here.\n\n\n\n\n 16\n Section 1005(g)—the other provision authorizing development on\na unit-wide basis—was not added to the GSA until 1988.\n\f PIT RIVER TRIBE V. BLM 27\n\n VI. Conclusion\n\n The statutory meaning of 30 U.S.C. § 1005(a) is clear and\nunambiguous. It only permits production-based continuations\non a lease-by-lease basis, not on a unit-wide basis. We\ntherefore affirm the district court’s order granting summary\njudgment in favor of the appellees.\n\n AFFIRMED.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Pit River Tribe v. Blm\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nPIT RIVER TRIBE; NATIVE No. 17-15616\\nCOALITION FOR MEDICINE\\nLAKE HIGHLANDS DEFENSE; D.C. Nos.\\nMOUNT SHASTA 2:04-cv-00956-JAM-AC\\nBIOREGIONAL ECOLOGY 2:04-cv-00969-JAM-AC\\nCENTER; SAVE MEDICINE\\nLAKE COALITION; MEDICINE\\nLAKE CITIZENS FOR QUALITY OPINION\\nENVIRONMENT,\\n Plaintiffs-Appellees,\\n\\n v.\\n\\nBUREAU OF LAND\\nMANAGEMENT; U.S.\\nDEPARTMENT OF THE\\nINTERIOR,\\n Defendants-Appellants.\\n\\n\\n Appeal from the United States District Court\\n for the Eastern District of California\\n John A. Mendez, District Judge, Presiding\\n\\n Argued and Submitted May 14, 2019\\n Seattle, Washington\\n\\n Filed September 19, 2019\\n\\f2 PIT RIVER TRIBE V. BLM\\n\\nBefore: William A. Fletcher and Morgan Christen, Circuit\\n Judges, and Roslyn O. Silver,* District Judge.\\n\\n Opinion by Judge Christen\\n\\n\\n SUMMARY**\\n\\n\\n Geothermal Steam Act / Federal Leases\\n\\n The panel affirmed the district court’s summary judgment\\nin favor of Pit River Tribe and several environmental\\norganizations in their action against federal agencies\\nresponsible for administering twenty-six unproven\\ngeothermal leases located in California’s Medicine Lake\\nHighlands.\\n\\n Pit River alleged that the Bureau of Land Management’s\\ndecision to continue the terms of the unproven leases for up\\nto forty years violated the Geothermal Steam Act (“GSA”).\\n\\n Section 1017 of the GSA authorizes the Secretary of the\\nInterior to approve cooperative or unit plans to manage\\nmultiple geothermal leases as a unit, and the Secretary must\\nreview such unit plans every five years and eliminate any\\nlease not reasonably necessary for unit operations under the\\nplan. Section 1005(a) of the GSA provides that geothermal\\n\\n\\n *\\n The Honorable Roslyn O. Silver, United States District Judge for the\\nDistrict of Arizona, sitting by designation.\\n **\\n This summary constitutes no part of the opinion of the court. It has\\nbeen prepared by court staff for the convenience of the reader.\\n\\f PIT RIVER TRIBE V. BLM 3\\n\\nleases on federal land have primary lease terms of ten years,\\nand allows the leases to be continued for as long as\\ngeothermal steam is produced in commercial quantities.\\nSection 1005(c) states that leases subject to “unit plans” may\\nbe extended even if not productive during the initial ten-year\\nterm under certain conditions.\\n\\n The panel held that the statutory meaning of 30 U.S.C.\\n§ 1005(a) was clear and unambiguous. The panel held that\\nthe provision permitted production-based forty-year\\ncontinuations at the end of the primary term only on a lease-\\nby-lease basis, not on a unit-wide basis. It was BLM’s\\nburden to provide a compelling reason for the court to depart\\nfrom the plain language of § 1005(a), and the panel\\nconcluded that it had not met that burden here.\\n\\n\\n COUNSEL\\n\\nMary Gabrielle Sprague (argued) and Ellen J. Durkee,\\nAppellate Section; Eric Grant, Deputy Assistant Attorney\\nGeneral; Jeffrey Bossert Clark, Acting Assistant Attorney\\nGeneral; Environment and Natural Resources Division,\\nUnited States Department of Justice, Washington, D.C.; for\\nDefendants-Appellants.\\n\\nSamuel Lazerwitz (argued) and Caleb G. Wright (argued),\\nCertified Law Students; Alicia E. Thesing, Isaac C. Cheng,\\nand Deborah Ann Sivas, Supervising Attorneys;\\nEnvironmental Law Clinic, Mills Legal Clinic at Stanford\\nLaw School, Stanford, California; for Plaintiffs-Appellees.\\n\\f4 PIT RIVER TRIBE V. BLM\\n\\n OPINION\\n\\nCHRISTEN, Circuit Judge:\\n\\n The Bureau of Land Management and the Department of\\nthe Interior (collectively, BLM) appeal the district court’s\\norder granting summary judgment in favor of the Pit River\\nTribe and several local and regional environmental\\norganizations (collectively, Pit River). We have jurisdiction\\npursuant to 28 U.S.C. § 1291 and we affirm the district\\ncourt’s judgment.\\n\\n I. Background\\n\\n Pit River filed this action against the federal agencies\\nresponsible for administering twenty-six unproven\\ngeothermal leases located in California’s Medicine Lake\\nHighlands. We refer to these leases as “unproven” because\\nBLM has not determined that they are capable of producing\\ngeothermal steam in commercial quantities. See Pit River\\nTribe v. Bureau of Land Mgmt., 793 F.3d 1147, 1149–50 (9th\\nCir. 2015) (Pit River III).1 Calpine Corporation, the current\\nleaseholder, was also named as a defendant but it did not\\nappeal the judgment the district court entered on remand from\\nour court. The operative complaint alleges that BLM’s\\ndecision to continue the terms of the unproven leases for up\\nto forty years violated the Geothermal Steam Act (GSA), the\\nNational Environmental Policy Act (NEPA), the National\\n\\n\\n\\n\\n 1\\n Our decision in Pit River III provides a detailed history of the case.\\nWe recount that history only as necessary to resolve this appeal.\\n\\f PIT RIVER TRIBE V. BLM 5\\n\\nHistoric Preservation Act (NHPA), and the Indian-fiduciary-\\ntrust doctrine.2 Id. at 1148.\\n\\n The subject leases are located within the Glass Mountain\\nUnit Plan. The parties agree that the GSA requires that any\\nlease be allowed to continue if it is producing geothermal\\nsteam in commercial quantities, or is shown to be capable of\\ndoing so, within its primary ten-year term. See 30 U.S.C.\\n§ 1005(a) (1994).3 The parties’ dispute centers on whether all\\nleases committed to a “unit plan” may be collectively\\ncontinued for up to forty years if any single lease in the unit\\nbecomes productive during the primary term. Pit River\\nargues that § 1005(a) allows production-based continuations\\nto be granted only on an individual basis. BLM argues that\\n§ 1005(a) allows production-based continuations to be\\ngranted to all leases in a unit if any one of them becomes\\nproductive during the primary term. BLM’s interpretation of\\nthe GSA is heavily informed by its view that the Mineral\\nLeasing Act (MLA), 30 U.S.C. §§ 221i–236a (1964),\\nprovides an important backdrop against which the GSA must\\nbe analyzed.4\\n\\n\\n\\n\\n 2\\n The complaint also alleges a violation of the Freedom of\\nInformation Act (FOIA), but the district court’s ruling on the FOIA issue\\nwas not appealed.\\n 3\\n Unless otherwise specified, all citations to the GSA refer to the 1994\\nedition of the United States Code because the parties agree that this\\niteration of the GSA applies to their dispute.\\n 4\\n Unless otherwise noted, all citations to the MLA’s provisions are to\\nthe 1964 edition of the United States Code, which was in effect when the\\nGSA was enacted.\\n\\f6 PIT RIVER TRIBE V. BLM\\n\\n II. Procedural History\\n\\n This is the second time our court has addressed the\\ncontroversy concerning the duration of the leases in the Glass\\nMountain Unit. See Pit River III, 793 F.3d at 1148. In July\\nof 2013, the district court granted judgment on the pleadings\\nin favor of BLM on the grounds that Pit River lacked\\nprudential standing to assert its GSA claim. Id. at 1154–55.\\nWe reversed the district court’s judgment, ruling that Pit\\nRiver’s claim fell within the GSA’s “zone of interests,” id. at\\n1155–58, and we remanded to the district court so it could\\nconsider the merits of the claims.\\n\\n On remand from Pit River III, the district court granted\\nsummary judgment in favor of Pit River. The court ruled\\nthat, as it was written in 1994, the GSA’s primary term\\nprovision was unambiguous and did not authorize BLM to\\ncontinue the twenty-six unproven leases for forty years\\nsimply because they were part of a unit that contained a\\nsingle proven lease. The district court reasoned that because\\nCongress referred to “unit plans” in § 1005(c) and (g), but\\nomitted this term from § 1005(a), “Congress did not\\ncontemplate the additional [forty]-year term for\\nnonproductive leases committed to a unit plan under\\n[§] 1005(a).” In an amended judgment, the district court\\nvacated and set aside BLM’s May 18, 1998 decision granting\\nthe lease continuations, and remanded the proceedings to the\\nagency to determine whether to extend or cancel the twenty-\\nsix leases pursuant to the GSA and the implementing\\nregulations in effect as of May 1998. The district court\\nobserved that its judgment did not affect BLM’s decision to\\ncontinue the single proven lease, and that Pit River’s NEPA,\\nNHPA, and fiduciary duty claims were mooted by the court’s\\n\\f PIT RIVER TRIBE V. BLM 7\\n\\nvacatur of BLM’s 1998 decision letters. BLM appeals the\\ndistrict court’s judgment.\\n\\n III. Standard of Review\\n\\n We review de novo an order granting summary judgment.\\nCty. of Amador v. U.S. Dep’t of the Interior, 872 F.3d 1012,\\n1020 (9th Cir. 2017).\\n\\n IV. Jurisdiction\\n\\n We must first assure ourselves of our jurisdiction to hear\\nthis appeal because the district court’s order granting\\nsummary judgment vacated BLM’s 1998 decision letters and\\nremanded to the agency. See Pit River Tribe v. U.S. Forest\\nServ., 615 F.3d 1069, 1075 (9th Cir. 2010). “[R]emand\\norders are generally not ‘final’ decisions for purposes of\\nsection 1291[,]” id., but a remand order is considered final\\nand appealable where: “(1) the district court conclusively\\nresolves a separable legal issue, (2) the remand order forces\\nthe agency to apply a potentially erroneous rule which may\\nresult in a wasted proceeding, and (3) review would, as a\\npractical matter, be foreclosed if an immediate appeal were\\nunavailable.” Id. (quoting Alsea Valley All. v. Dep’t of\\nCommerce, 358 F.3d 1181, 1184 (9th Cir. 2004)). Here,\\nbecause the district court determined that 30 U.S.C. § 1005(a)\\ndid not authorize BLM to continue the unproven leases based\\non the single proven lease, BLM will be constrained by this\\ninterpretation on remand. If the district court’s interpretation\\nis incorrect, the remand will result in a wasted proceeding.\\nMoreover, review of the district court’s interpretation will be\\nforeclosed absent immediate appeal because, after remand to\\nthe agency, BLM cannot later appeal the result of its own\\nagency decision. See Alsea Valley All., 358 F.3d at 1184;\\n\\f8 PIT RIVER TRIBE V. BLM\\n\\nChugach Alaska Corp. v. Lujan, 915 F.2d 454, 457 (9th Cir.\\n1990). For these reasons, we conclude that we have\\njurisdiction to hear this appeal.\\n\\n V. Discussion\\n\\n A. The Geothermal Steam Act\\n\\n This appeal requires us to interpret the GSA, 30 U.S.C.\\n§§ 1001–1028 (1994). Congress enacted the GSA in 1970 “to\\npromote the development of geothermal leases on federal\\nlands.” Geo-Energy Partners-1983 Ltd. v. Salazar, 613 F.3d\\n946, 949 (9th Cir. 2010). Geothermal resources include “the\\nheat or energy found in steam, hot water, or geothermal\\nformations.” Id. The GSA was adopted in the wake of the\\nMLA, which governs oil and gas leases on federal lands. BP\\nAm. Prod. Co. v. Burton, 549 U.S. 84, 87 (2006). A brief\\nexplanation of the MLA’s unitization provision provides\\nhelpful background.\\n\\n When Congress enacted the MLA, oil and gas were\\nextracted under the common-law “rule of capture,” which\\nencouraged landowners to drill wells on individual leases to\\ncapture as much oil or gas as possible. See Frank Sylvester\\n& Robert W. Malmsheimer, Oil and Gas Spacing and Forced\\nPooling Requirements: How States Balance Energy\\nDevelopment and Landowner Rights, 40 U. Dayton L. Rev.\\n47, 49 (2015). The rule of capture encouraged overdrilling\\nthat dissipated reservoir pressure and ultimately led to\\ninefficient oil and gas recovery. See Northcutt Ely, The\\nConservation of Oil, 51 Harv. L. Rev. 1209, 1219–22 (1938).\\nThe practice of unitization emerged in response to these\\ninefficiencies. See Sylvester, et al., supra at 49–50.\\nUnitization allows an entire oil or gas field “to be operated as\\n\\f PIT RIVER TRIBE V. BLM 9\\n\\na single entity, without regard to surface boundary issues,”\\nsee Norfolk Energy, Inc. v. Hodel, 898 F.2d 1435, 1438 (9th\\nCir. 1990) (internal quotation marks omitted), i.e., it allows\\ndrilling and production operations occurring on a single lease\\nwithin a unit to be deemed performed on all other leases\\nwithin the unit for purposes of showing that bona fide\\ndevelopment efforts have been made, or for sharing royalties.\\nSee, e.g., 30 U.S.C. § 1017; 30 U.S.C. § 226(j); 43 C.F.R.\\n§§ 3280–3287 (1997). By limiting the need to drill on each\\nlease within a unit, unitization lessens the likelihood that an\\noil or gas reservoir will suffer from overdrilling and depleted\\nreservoir pressure. Congress incorporated the unitization\\nconcept into the MLA, granting the Secretary of the Interior\\nthe authority to approve unit plans of development when\\ndoing so is in the public interest. See Pub. L. No. 71-853, 46\\nStat. 1523. Although significant differences exist between\\nthe MLA and the GSA, the GSA also permits lessees to join\\ntogether under unit plans of development. See 30 U.S.C.\\n§ 1017; 43 C.F.R. § 3280.0–2 (1997).\\n\\n The GSA refers to production-based “continuations” and\\ndrilling-based “extensions”—concepts articulated in the\\nMLA—but neither the MLA nor the GSA explicitly define\\nthese terms. See 30 U.S.C. §§ 221i–236a; 30 U.S.C. § 1001.\\nThe parties agreed at oral argument that, like the MLA, the\\nGSA allows for lease continuations based on production, and\\nlease extensions based on exploratory drilling activities.5\\n\\n\\n\\n 5\\n We note that the Interior Board of Land Appeals generally interprets\\na continuation based on production as a prolonged lease term that is\\n“indefinite and is allowed when a lease is presently capable of producing\\noil or gas” in commercial quantities, while an “‘extension by drilling’ . . .\\nrequires that a lessee conduct actual drilling operations on the last day of\\n\\f10 PIT RIVER TRIBE V. BLM\\n\\n Pit River’s claims implicate §§ 1005 and 1017 of the\\nGSA, so we discuss these provisions in some detail. Section\\n1017 governs unit plans. Section 1005 governs the duration\\nof geothermal lease terms.\\n\\n 1. 30 U.S.C. § 1017: The Unitization Provision\\n\\n Section 1017 of the GSA authorizes the Secretary of the\\nInterior to approve cooperative or unit plans to manage\\nmultiple leases as a unit “[f]or the purpose of properly\\nconserving the natural resources of any geothermal pool,\\nfield, or like area.” 30 U.S.C. § 1017. The Secretary must\\nreview such unit plans every five years “and, after notice and\\nopportunity for comment, eliminate from inclusion in such\\nplan any lease or part of a lease not regarded as reasonably\\nnecessary to cooperative or unit operations under the plan.”\\nPit River III, 793 F.3d at 1150 (quoting 30 U.S.C. § 1017).\\n\\n 2. 30 U.S.C. § 1005: The Lease Duration\\n Provisions\\n\\n Section 1005(a) of the GSA provides that geothermal\\nleases on federal land have primary lease terms of ten years.\\n30 U.S.C. § 1005(a). If geothermal steam is produced in\\ncommercial quantities during the ten-year primary term,\\n§ 1005(a) allows the lease to be continued for as long as\\ngeothermal steam is produced in commercial quantities, not\\n\\n\\n\\n\\nthe lease term with an intent to complete a producing well.” Coastal\\nPetroleum Co., 190 IBLA 347, 352, 2017 WL 3263839, at *4 (July 25,\\n2017).\\n\\f PIT RIVER TRIBE V. BLM 11\\n\\nto exceed an additional forty years.6 Id. At the end of the\\nfirst forty-year term granted pursuant to § 1005(a), the GSA\\naffords a preferential right of renewal for a second forty-year\\nterm if geothermal steam is still being produced in\\ncommercial quantities and the land is not needed for other\\npurposes. 30 U.S.C. § 1005(b).\\n\\n Neither § 1005(a) nor § 1005(b) refer to “unit plans,” but\\n§ 1005(c) does. It is entitled “Cooperative or unit plan for\\ndrilling operations; extension of term; renewal.” 30 U.S.C.\\n§ 1005(c). Section 1005(c) states that leases subject to unit\\nplans may be extended, even if the leases have not been\\nproductive during their initial ten-year primary terms, if\\nactual drilling operations begin prior to the end of the primary\\nlease terms and are being diligently prosecuted.7 Id. For\\nleases still not producing steam nor shown to be capable of\\nproducing in commercial quantities by the end of an\\nextension granted pursuant to § 1005(c), the agency may\\n\\n\\n 6\\n 30 U.S.C. § 1005(a) specifies that “[i]f geothermal steam is\\nproduced or utilized in commercial quantities within this term, such lease\\nshall continue for so long thereafter as geothermal steam is produced or\\nutilized in commercial quantities, but such continuation shall not exceed\\nan additional forty years.” In turn, 30 U.S.C. § 1005(d) defines “produced\\nor utilized in commercial quantities” to include a showing that a well is\\n“capable of producing geothermal steam in commercial quantities.”\\n(emphasis added).\\n 7\\n 30 U.S.C. § 1005(c) provides, inter alia, that a lease for which:\\n\\n actual drilling operations were commenced prior to the\\n end of its primary term and are being diligently\\n prosecuted at that time shall be extended for five years\\n and so long thereafter, but not more than thirty-five\\n years, as geothermal steam is produced or utilized in\\n commercial quantities.\\n\\f12 PIT RIVER TRIBE V. BLM\\n\\nauthorize one or two additional five-year extensions if the\\nlessee has made certain bona fide efforts.8 30 U.S.C.\\n§ 1005(g)(1). Notably, § 1005(g)(1) also expressly refers to\\nleases operated under “approved cooperative or unit plan[s]\\nof development.” Id. If a lease extended pursuant to\\n§ 1005(g)(1) begins producing geothermal steam in\\ncommercial quantities during a § 1005(g)(1) extension,\\n§ 1005(g)(2) provides that the lease shall be continued for up\\nto twenty-five additional years if it was previously extended\\nunder § 1005(c), “for a total of [fifty] years,” or for up to\\nthirty additional years (but not to exceed a total of fifty years)\\n\\n\\n\\n\\n 8\\n 30 U.S.C. § 1005(g)(1) states:\\n\\n (1) Any geothermal lease issued pursuant to this\\n chapter for land on which, or for which under an\\n approved cooperative or unit plan of development or\\n operation, geothermal steam has not been produced or\\n utilized in commercial quantities by the end of its\\n primary term, or by the end of any extension provided\\n by subsection (c) of this section, may be extended for\\n successive 5-year periods, but totaling not more than\\n 10 years, if the Secretary determines that the lessee has\\n met the bona fide effort requirement of subsection (h)\\n of this section, and either of the following:\\n\\n (A) [T]he payment in lieu of commercial quantities\\n production requirement of subsection (i) of this\\n section.\\n\\n (B) The significant expenditure requirement of\\n subsection (j) of this section.\\n\\f PIT RIVER TRIBE V. BLM 13\\n\\nif it was only previously extended pursuant to § 1005(g)(1).9\\n30 U.S.C. § 1005(g)(2).\\n\\n B. The Glass Mountain Leases\\n\\n Three years after Congress enacted the GSA, BLM\\npromulgated regulations authorizing holders of geothermal\\nleases to enter into unit agreements for the development of\\ngeothermal resources. See 38 Fed. Reg. 35,068, 35,073–75\\n(Dec. 21, 1973); see also 43 C.F.R. §§ 3280.0–1 to 3286.1\\n(1997). These regulations included a model unit agreement.\\nSee 38 Fed. Reg. at 35,075–80; see also 43 C.F.R. § 3286.1\\n(1997). In 1982, Calpine’s predecessors entered into the\\nGlass Mountain Unit Agreement, which tracked the\\nregulations’ model agreement.10\\n\\n The twenty-six unproven leases at issue in this\\nappeal—plus a twenty-seventh “proven lease” that BLM\\ndetermined was capable of producing geothermal steam in\\ncommercial quantities—were eventually committed to the\\nGlass Mountain Unit Agreement. Pit River III, 793 F.3d\\nat 1149–51. The Agreement established a “Unit Area” and\\n\\n 9\\n 30 U.S.C. § 1005(g)(2) provides:\\n\\n (2) A lease extended pursuant to paragraph (1) shall\\n continue so long thereafter as geothermal steam is\\n produced or utilized in commercial quantities, but such\\n continuation shall not exceed an additional 25 years, for\\n a total of 50 years, if such lease was also the subject of\\n an extension under subsection (c) of this section or an\\n additional 30 years, for a total of 50 years, if such lease\\n is only extended pursuant to paragraph (1).\\n 10\\n We do not separately identify Calpine’s predecessors to avoid\\nconfusion and because the predecessors’ actions do not affect our analysis.\\n\\f14 PIT RIVER TRIBE V. BLM\\n\\n“Participating Area.” The Unit Area is the area comprised of\\nall leases subject to the Agreement, and the Participating Area\\nis the “part of the Unit Area which is deemed to be\\nproductive,” i.e., it is “all land then regarded as reasonably\\nproved to be productive from a pool or deposit discovered or\\ndeveloped[.]” By the fifth anniversary of the Participating\\nArea’s effective date, the Agreement requires that all portions\\nof unitized lands not entitled to be included in the\\nParticipating Area must be automatically eliminated from the\\nAgreement and from the Unit Area, unless drilling operations\\nare in progress on an exploratory well and these operations\\ncontinue diligently.\\n\\n In 1989, BLM determined that a single lease in the Glass\\nMountain Unit was capable of producing geothermal steam\\nin commercial quantities. Pit River III, 793 F.3d at 1151. In\\n1991 and 1992, at the request of Calpine’s predecessors,\\nBLM’s California State Office extended the terms of twenty-\\nfour unproven leases in the Glass Mountain Unit for five\\nyears pursuant to § 1005(g)(1). BLM continued the term of\\nthe single proven lease for up to forty additional years\\npursuant to § 1005(a). Id. In the process of responding to the\\npredecessors’ requests, BLM’s California State Office\\ncommunicated with the Nevada State Office, “which advised\\nthat [forty]-year lease continuations should be granted to all\\nof the unproven Glass Mountain leases[.]” Id. The California\\nOffice disagreed. Id. It concluded that “the ‘[forty-]year\\nextension [under § 1005(a)] may only be applied to the lease\\nwith the well capable of production and not to the other\\ncommitted leases in the unit.’” Id. (second alteration in\\noriginal). The California Office noted that § 1005(a) did not\\nrefer to unit plans. Id.\\n\\f PIT RIVER TRIBE V. BLM 15\\n\\n In 1995, BLM sent Calpine’s predecessor a letter stating\\nthat the predecessor was “in default of meeting reasonable\\ndiligence in the unit,” and that the Glass Mountain Unit was\\n“no longer of any significant benefit to the BLM or Forest\\nService” because “[t]he unit has become an impediment to\\ndevelopment by causing operators to select drilling targets on\\nthe basis of whether a lease is or is not committed to the unit\\ninstead of the area with the greatest potential to support a\\ndevelopment project.” On June 3, 1996, BLM notified\\nCalpine’s predecessor via an additional letter that a proposed\\nParticipating Area should have been submitted in 1989, but\\nthat due to agency delay and other circumstances, BLM\\nwould allow submission of a proposed Participating Area\\nwithin sixty days of receipt of the letter. Calpine’s\\npredecessor submitted a proposed Participating Area on\\nAugust 15, 1996.11\\n\\n BLM’s California State Office changed its interpretation\\nof § 1005(a) in 1998. The California Office’s Program Lead,\\nSean Hagerty, circulated an internal memo that sheds light on\\nthe reasons for BLM’s changed position. Hagerty’s memo\\ndescribed the prior disagreement between BLM’s California\\nand Nevada Offices and explained that the California Office\\nwas concerned about allowing the Glass Mountain Unit to\\ncontinue for an indefinite period of time merely based on the\\nsingle proven lease. In particular, “BLM was concerned over\\nhow the Unit could be managed without any effective way of\\nrequiring the unit operator . . . to conduct additional activities\\nin the Unit prior to the submission of the initial Participating\\nArea (PA).” The memo explained that BLM was initially\\nuncertain whether the single proven lease, which was deemed\\n\\n 11\\n This information was not part of the record in Pit River III, 793\\nF.3d at 1152 n.6.\\n\\f16 PIT RIVER TRIBE V. BLM\\n\\ncapable of production but had not actually commenced\\nproduction, was legally sufficient to require Calpine’s\\npredecessor to submit an initial Participating Area. Because\\nBLM subsequently decided that a well capable of production\\nwas equivalent to a well actually in production, it requested\\nand received a proposed Participating Area from Calpine’s\\npredecessor. Hagerty’s memo concluded that, because the\\nParticipating Area had been designated, “the Glass Mountain\\nUnit boundary would contract down to the boundary of the\\n[Participating Area],” and therefore “the Glass Mountain Unit\\nAgreement no longer had an indefinite lifespan and could\\nnow be managed in the public interest.” Hagerty\\nrecommended that BLM grant an additional term of up to\\nforty years to all leases committed to the Glass Mountain\\nUnit.\\n\\n On May 18, 1998—five days after Hagerty circulated his\\nmemo—BLM’s California Office issued decision letters\\nvacating the 1991 and 1992 lease extensions for the unproven\\nleases and continuing them for up to forty years pursuant to\\n§ 1005(a).12 Pit River III, 793 F.3d at 1152. BLM explained\\nthat the decision to grant the five-year lease extensions\\npursuant to the regulation implementing § 1005(g)(1) “was in\\nerror.” BLM further explained that all leases committed to\\nthe Glass Mountain Unit should have been granted additional\\nlease terms based on the paying-well determination for the\\nsingle proven lease pursuant to the regulation implementing\\n§ 1005(a) and (d).\\n\\n\\n\\n\\n 12\\n In total, BLM continued twenty-six unproven leases, which\\nincluded two leases that were not previously extended in 1991 or 1992.\\nPit River III, 793 F.3d at 1152 n.8.\\n\\f PIT RIVER TRIBE V. BLM 17\\n\\n C. Statutory Analysis\\n\\n It is clear that the GSA authorizes “continuations” based\\non production, see 30 U.S.C. § 1005(a), and there is no\\ndispute that the GSA authorizes five-year “extensions” based\\non actual drilling or bona fide efforts. See § 1005(c), (g).\\nBoth parties argue that 30 U.S.C. § 1005(a) is clear and\\nunambiguous, but they advocate for opposite interpretations.\\nBLM argues that § 1005(a), read in light of the GSA as a\\nwhole and against the backdrop of the MLA, authorizes forty-\\nyear continuations on a unit-wide basis once a single lease in\\na unit is deemed productive. Pit River argues that § 1005(a)\\nunambiguously authorizes forty-year continuations at the end\\nof a primary term only on a lease-by-lease basis, not on a\\nunitized basis.\\n\\n “We interpret a federal statute by ascertaining the intent\\nof Congress and by giving effect to its legislative will[,]”\\nbeginning with the statute’s language. Artichoke Joe’s Cal.\\nGrand Casino v. Norton, 353 F.3d 712, 720 (9th Cir. 2003)\\n(internal quotation marks omitted). We “presume that [the]\\nlegislature says in a statute what it means and means in a\\nstatute what it says.” BedRoc Ltd., LLC v. United States,\\n541 U.S. 176, 183 (2004) (internal quotation marks omitted).\\n“The plainness or ambiguity of statutory language is\\ndetermined by reference to the language itself, the specific\\ncontext in which the language is used, and the broader\\ncontext of the statute as a whole.” Geo-Energy Partners-\\n1983 Ltd., 613 F.3d at 956 (internal quotation marks omitted).\\nIf “the language is not dispositive, we look to the\\ncongressional intent revealed in the history and purposes of\\nthe statutory scheme.” Artichoke Joe’s, 353 F.3d at 720\\n(internal quotation marks omitted). “[I]f we find that the\\nstatutory meaning is plain and unambiguous, then our ‘sole\\n\\f18 PIT RIVER TRIBE V. BLM\\n\\nfunction . . . is to enforce it according to its terms.’”\\nHernandez v. Williams, Zinman & Parham PC, 829 F.3d\\n1068, 1072 (9th Cir. 2016) (alteration in original) (quoting\\nUnited States v. Ron Pair Enters., 489 U.S. 235, 241 (1989));\\nsee Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,\\n467 U.S. 837, 842–43 (1984) (“If the intent of Congress is\\nclear, that is the end of the matter; for the court, as well as the\\nagency, must give effect to the unambiguously expressed\\nintent of Congress.”).\\n\\n We begin with the GSA’s text, and observe that § 1005(a)\\ndoes not include the term “unit plan.” See 30 U.S.C.\\n§ 1005(a). It is not our practice to read words into statutory\\nprovisions, see United States v. Watkins, 278 F.3d 961, 965\\n(9th Cir. 2002), as a statute’s plain language is “our primary\\nguide to Congress’ preferred policy.” Sandoz Inc. v. Amgen\\nInc., 137 S. Ct. 1664, 1678 (2017) (internal quotation marks\\nomitted). Relatedly, we have observed that:\\n\\n It is a well-established canon of statutory\\n interpretation that the use of different words\\n or terms within a statute demonstrates that\\n Congress intended to convey a different\\n meaning for those words. Congress’s explicit\\n decision to use one word over another in\\n drafting a statute is material. It is a decision\\n that is imbued with legal significance and\\n should not be presumed to be random or\\n devoid of meaning.\\n\\nSEC v. McCarthy, 322 F.3d 650, 656 (9th Cir. 2003) (internal\\ncitations omitted). “[W]hen Congress includes particular\\nlanguage in one section of a statute but omits it in another\\nsection of the same Act, it is generally presumed that\\n\\f PIT RIVER TRIBE V. BLM 19\\n\\nCongress acts intentionally and purposely in the disparate\\ninclusion or exclusion.” Barnhart v. Sigmon Coal Co.,\\n534 U.S. 438, 452 (2002) (internal quotation marks omitted).\\nWe conclude that the use of “unit plan” in § 1005(c) and\\n(g)(1) expressly memorialized congressional intent to make\\nshort lease extensions available on a unit-wide basis if leases\\ndo not become productive during their primary terms but\\nlease operators can show that drilling has commenced or\\nother bona fide efforts have been made. In other words, we\\nconclude that the omission of the term “unit plan” in\\n§ 1005(a) is “imbued with legal significance.” McCarthy,\\n322 F.3d at 656.\\n\\n BLM argues that Congress’s omission of the term “unit\\nplan” from § 1005(a) is not a rejection of the unitization\\nprinciple because the subsection must be read in conjunction\\nwith the GSA as a whole and against the historical backdrop\\nof the MLA. This argument is premised on BLM’s unstated\\nassertion that geothermal steam reservoirs function in the\\nsame way that underground pools of oil and gas do. Prior to\\noral argument, the record contained no support for this\\nassertion. After oral argument, BLM submitted a letter\\nexplaining that overdrilling in geothermal fields results in a\\nloss of well pressure, just like oil and gas fields. As support,\\nBLM’s letter cited a public document that reported on the\\nrapid development of a northern California hydrothermal\\nsystem and the resulting loss of production well pressure. Pit\\nRiver has not had a chance to respond, but even assuming that\\ngeothermal reservoirs function the same way as oil and gas\\nreservoirs do, the general framework Congress adopted in the\\nMLA does not overcome the plain language Congress chose\\nfor the GSA’s primary term and unitization provisions.\\n\\f20 PIT RIVER TRIBE V. BLM\\n\\n BLM argues that the MLA provides important context\\nand that the incorporation of the unitization principle into the\\nMLA suggests Congress intended to adopt the same statutory\\nscheme for the GSA. We disagree. Congress enacted the\\nMLA decades before it enacted the GSA, and we assume\\nCongress is knowledgeable about existing law when it enacts\\nnew legislation. See Miles v. Apex Marine Corp., 498 U.S.\\n19, 32 (1990); see also Cty. of Amador, 872 F.3d at 1022\\n(“[U]nderstanding the historical context in which a statute\\nwas passed can help to elucidate the statute’s purpose and the\\nmeaning of statutory terms and phrases.”). The GSA’s\\nsponsor understood the 1970 bill to generally permit the\\nSecretary of Interior to lease public lands in “much the same\\nmanner” as the Secretary was authorized to do by the MLA.\\nS. Rep. No. 91-1160, at 4 (1970). But Congress recognized\\nthat efforts to harness geothermal steam in an emerging\\nmarket posed unique challenges. See H.R. Rep. No. 91-1544,\\nat 3–4 (1970). By 1970, the MLA was in its fiftieth year of\\nregulating oil and gas leasing but the geothermal steam\\nindustry was still in its infancy. Congress acknowledged that\\nthe mining and mineral leasing statutes “lack many of the\\nrequirements necessary to encourage [geothermal steam’s]\\norderly development.” Id. at 5. The hope was that the GSA\\nwould “establish a framework that will make this risk-laden,\\nrelatively untried industry an attractive investment in the\\npublic interest.” S. Rep. No. 91-1160, at 9. Recognizing the\\nneed to encourage geothermal exploration by allowing\\nleaseholders time to get the resource to market—or to bring\\nthe market to the geothermal steam by building\\ninfrastructure—the GSA’s original sponsor acknowledged\\n“there may be some reasonable delay beyond the expiration\\nof the primary term before a generating facility can be\\ninstalled to receive the steam and commence actual power\\n\\f PIT RIVER TRIBE V. BLM 21\\n\\nproduction.”13 S. Rep. No. 91-1160, at 8. Contrary to BLM’s\\nargument, the text of the GSA, read as a whole, demonstrates\\nthat Congress deviated from the MLA when it adopted the\\nGSA, perhaps because it was aware of the need to\\naccommodate the uniquely-situated geothermal steam\\ntechnology and developing market.\\n\\n A comparison of the GSA’s primary term provision,\\n§ 1005(a), and the MLA’s primary term provision, 30 U.S.C.\\n§ 226(e), reveals notable differences. Section 226(e) is\\nentitled “Primary terms” and it expressly incorporates the\\nphrase “unit plan.” Section 226(e) governs primary lease\\nterm continuations and extensions thereafter. Congress did\\nnot adopt § 226(e) wholesale when it enacted the GSA;\\nrather, it split this provision into two subsections. Section\\n1005(a) authorizes primary term continuations and § 1005(c)\\nseparately authorizes post-primary term extensions and\\nproduction-based continuations. BLM describes the decision\\nto divide § 226(e) into § 1005(a) and (c) in the GSA as a\\nstylistic choice, but we are mindful that Congress could have\\nreplicated the MLA’s primary term provision (including the\\n“unit plan” language) directly into the statutory text of GSA\\n§ 1005(a), and it did not do so.\\n\\n BLM goes on to argue that the GSA provision authorizing\\nunit plans, 30 U.S.C. § 1017, authorizes § 1005(a)’s\\nproduction-based continuations to be granted on a unit-wide\\n\\n\\n 13\\n Indeed, even as of 1988, Congress acknowledged the challenges\\ninvolved in harnessing geothermal energy. H.R. Rep. No. 100-664, at 6\\n(1988) (“Unlike coal, oil and gas which can be transported to power\\nproduction facilities, the steam from a geothermal well cannot be\\ntransported more than two miles because of heat dissipation,” and must be\\nconverted to electricity at or near the well site.).\\n\\f22 PIT RIVER TRIBE V. BLM\\n\\nbasis because § 1017 is fairly read to broadly incorporate the\\nMLA’s unitization framework into the GSA. We are not\\npersuaded that so much can be read into § 1017. First,\\nBLM’s reasoning “would require us to assume that Congress\\nchose a surprisingly indirect route to convey an important and\\neasily expressed message.” Landgraf v. USI Film Prods.,\\n511 U.S. 244, 262 (1994). See generally Zachary v. Cal.\\nBank & Tr., 811 F.3d 1191, 1198–99 (9th Cir. 2016)\\n(rejecting statutory reading that reflected a policy choice\\nCongress could have made “in a far more straightforward\\nmanner”). Section 1017 authorizes unit agreements and\\nconstriction of unit plans, requiring that, no more than five\\nyears after approval of a unit plan (and at least every five\\nyears thereafter), the Secretary of the Interior must eliminate\\nleases “not regarded as reasonably necessary to . . . unit\\noperations.”14 30 U.S.C. § 1017. Section 1017 further\\nprovides that leases eliminated from a unit by the constriction\\nprocess may receive extensions pursuant to § 1005(c) and (g)\\nonly if they separately qualify.15 Id. The language in § 1017\\nrepresents a significant departure from the MLA’s corollary\\nprovision governing unit plans, MLA § 226(j). The MLA\\nallows lessees to form unit plans for development, but it\\nexpressly allows leases to be continued indefinitely on a unit-\\nwide basis—for as long as production continues. See\\n30 U.S.C. § 226(j). Setting aside renewals authorized by\\n\\n\\n 14\\n Section 1017 also provides that this “elimination shall be based on\\nscientific evidence, and shall occur only when it is determined by the\\nSecretary to be for the purpose of conserving and properly managing the\\ngeothermal resource.”\\n 15\\n BLM argues that this language reaffirms the unitization principle.\\nBut the impact of this language is limited. It merely confirms that leases\\nconstricted from a unit plan must individually qualify for extensions under\\n§ 1005(c) or (g); it says nothing about continuations under § 1005(a).\\n\\f PIT RIVER TRIBE V. BLM 23\\n\\n§ 1005(b) and (g)(3), all GSA lease terms are capped at fifty\\nyears. The MLA also differs from the GSA by not requiring\\nplan review every five years for constriction of the unit plan.\\nSee id. In sum, we agree that the MLA provides context for\\nconsidering the terms of the GSA, but it cannot be doubted\\nthat Congress varied from the MLA when it fashioned\\n§§ 1005 and 1017, and the MLA’s unitization framework\\ndoes not require the conclusion BLM urges us to reach.\\n\\n BLM next argues that the following language in\\n§ 1005(g)(1) demonstrates that § 1005(a) authorizes\\ncontinuations on a unit-wide basis:\\n\\n Any geothermal lease issued pursuant to this\\n chapter for land on which, or for which under\\n an approved cooperative or unit plan of\\n development or operation, geothermal steam\\n has not been produced or utilized in\\n commercial quantities by the end of its\\n primary term, or by the end of any extension\\n provided by subsection (c) . . . may be\\n extended for successive 5-year periods[.]\\n\\n§ 1005(g)(1). Congress added this provision in 1988 to help\\nnon-productive leases withstand adverse market conditions\\ncreated by a world energy glut. See H.R. Rep. No. 100-664,\\nat 6 (1988). As BLM’s argument goes, because § 1005(g)(1)\\nallows unproductive leases in unit plans to be extended for\\nfive years on a unit-wide basis if they remain unproductive at\\nthe end of their primary terms, and because it also provides\\nthat leases are ineligible for § 1005(g)(1) extensions if they\\nhave received § 1005(a) continuations, then § 1005(g)(1)\\nmust be read as confirmation that § 1005(a) authorizes\\nproduction-based continuations on a unit-wide basis. Again,\\n\\f24 PIT RIVER TRIBE V. BLM\\n\\nwe are not persuaded. BLM’s reasoning overlooks the most\\nstraightforward reading of the statute: Regardless of the\\ncombination of primary term, continuations or extensions,\\nCongress capped the terms of geothermal leases at fifty years.\\nConsistent with this scheme, leases that receive forty-year\\ncontinuations under § 1005(a) after becoming productive\\nduring their ten-year primary terms are ineligible for the\\nshorter extensions allowed for unproven leases. BLM also\\noverlooks that § 1005(a) says nothing about unit plans, and\\nthat § 1005(g)(1) only authorizes extensions, on an individual\\nor a unit-wide basis, for leases that do not become productive\\nduring their primary terms or § 1005(c) extensions. Contrary\\nto BLM’s conclusion, it was entirely consistent for Congress\\nto have provided short unit-wide extensions under § 1005(c)\\nand (g)(1) for unproductive leases that do not individually\\nqualify for lengthy continuations during their primary terms.\\n\\n BLM also argues that because GSA § 1005(c) and (g)(2)\\nauthorize continuations on a unit-wide basis for leases that\\nproduce steam in commercial quantities during extended\\nterms, it “defies logic” to think that Congress did not intend\\nto provide unit-wide rewards for production achieved during\\ninitial primary lease terms. The reason Congress chose not to\\nincorporate the unitization principle into the GSA’s primary\\nterm provision is not fully explained by the statute, but in the\\nordinary case, “our obligation is to apply the statute as\\nCongress wrote it.” Hubbard v. United States, 514 U.S. 695,\\n703 (1995). We have explained why we are not persuaded by\\nBLM’s premise that § 1005(a) must allow continuations on\\na unitized basis because the GSA’s primary term provision\\nwas modeled after the MLA’s primary term provision.\\nFurther, given the nature of the emerging geothermal steam\\nmarket, Congress may have opted against unit-wide\\ncontinuations during primary terms as a way of incentivizing\\n\\f PIT RIVER TRIBE V. BLM 25\\n\\nexploration on all leases to define the contours of the\\nproductive area during the primary term. The decision not to\\nincorporate unit-wide continuations during the primary term\\nstill allows leaseholders to benefit from unitization through\\ncost and royalty sharing. It is also consistent with § 1017’s\\nmandatory review of unit plans every five years, and with the\\nrequirement that unit areas be constricted to eliminate leases\\nnot reasonably necessary to unit operations. See 30 U.S.C.\\n§ 1017. Congress may have been concerned that granting\\nunit-wide continuations during the initial ten-year term would\\nimpede development by encouraging operators to select\\ndrilling targets based on whether leases were committed to\\nunits, rather than on the areas with the greatest potential for\\nproduction. This is the very concern BLM expressed in 1995.\\nWhatever the case, on the record before us, we do not agree\\nwith BLM’s assertion that it defies logic to conclude that\\nCongress did not intend to authorize production-based\\ncontinuations on a unitized basis during primary terms.\\n\\n BLM’s final argument is that § 1005(a)’s legislative\\nhistory shows that Congress intended the terms of all leases\\nin a unit to benefit if any one of them becomes productive\\nduring the primary term. BLM points us to a 1970 House\\nReport:\\n\\n Section 6 of the bill provides that each\\n geothermal lease shall be for a primary term\\n of 10 years. If steam is produced or utilized\\n in commercial quantities within this term the\\n lease will continue for so long thereafter as\\n such production or utilization continues, but\\n not to exceed an additional 40 years. If at the\\n end of such 40 years steam continues to be\\n produced in commercial quantities, and the\\n\\f26 PIT RIVER TRIBE V. BLM\\n\\n land is not needed for other purposes, the\\n lessee is given a preferential right to a renewal\\n of the lease for a second 40-year period in\\n accordance with such terms and conditions as\\n the Secretary deems appropriate. Comparable\\n provision is also made respecting lands leased\\n for development under approved cooperative\\n and unit plans.\\n\\nH.R. Rep. No. 91-1544, at 7 (1970) (emphasis added). BLM\\nargues that the “comparable provision” for leases committed\\nto unit plans must be § 1017. But it is equally likely that,\\nwhen Congress passed the GSA in 1970, this passage was\\nintended to differentiate § 1005(a) from § 1005(c), the only\\nprovision then authorizing development on a unit-wide\\nbasis.16 In other words, the passage that BLM relies on may\\nhighlight that Congress adopted a lease-by-lease approach for\\nproduction-based continuations during the primary term in\\n§ 1005(a), and that § 1005(c) authorized a separate but\\ncomparable unit-wide approach for five-year extensions\\ngranted after primary terms, based on drilling. Absent further\\ncontext or explanation in the House Report, we find its\\nreference to “comparable provision” to be inconclusive. See\\nFlores-Arellano v. INS, 5 F.3d 360, 362 (9th Cir. 1993)\\n(ruling that inconclusive legislative history was insufficient\\nto overcome unambiguous statutory text). It is BLM’s burden\\nto provide a compelling reason for us to depart from the plain\\nlanguage of § 1005(a), and we conclude it has not met that\\nburden here.\\n\\n\\n\\n\\n 16\\n Section 1005(g)—the other provision authorizing development on\\na unit-wide basis—was not added to the GSA until 1988.\\n\\f PIT RIVER TRIBE V. BLM 27\\n\\n VI. Conclusion\\n\\n The statutory meaning of 30 U.S.C. § 1005(a) is clear and\\nunambiguous. It only permits production-based continuations\\non a lease-by-lease basis, not on a unit-wide basis. We\\ntherefore affirm the district court’s order granting summary\\njudgment in favor of the appellees.\\n\\n AFFIRMED.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4472,"cells":{"id":{"kind":"number","value":4662545,"string":"4,662,545"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Robert Collazo"},"decision_date":{"kind":"string","value":"2019-09-19"},"docket_number":{"kind":"string","value":"15-50509"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"\", \"parties\": \"\", \"opinions\": [{\"author\": \"THOMAS, Chief Judge\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION FILED\\n UNITED STATES COURT OF APPEALS SEP 19 2019\\n MOLLY C. DWYER, CLERK\\n U.S. COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\nUNITED STATES OF AMERICA, No. 15-50509\\n\\n Plaintiff-Appellee,\\n D.C. No.\\n v. 3:13-cr-04514-BEN-7\\n Southern District of California,\\nROBERT COLLAZO, AKA Weasel, San Diego\\n\\n Defendant-Appellant. ORDER\\n\\n\\nUNITED STATES OF AMERICA, No. 16-50048\\n\\n Plaintiff-Appellee, D.C. No.\\n 3:13-cr-04514-BEN-1\\n v.\\n\\nLINO DELGADO-VIDACA, AKA Leonard\\nDelgado, AKA Spanky,\\n\\n Defendant-Appellant.\\n\\n\\nUNITED STATES OF AMERICA, No. 16-50117\\n\\n Plaintiff-Appellee, D.C. No.\\n 3:13-cr-04514-BEN-4\\n v.\\n\\nJULIO RODRIGUEZ, AKA Sniper,\\n\\n Defendant-Appellant.\\n\\fUNITED STATES OF AMERICA, No. 16-50195\\n\\n Plaintiff-Appellee, D.C. No.\\n 3:13-cr-04514-BEN-2\\n v.\\n\\nSTEVEN AMADOR, AKA Gordo, AKA\\nInsane,\\n\\n Defendant-Appellant.\\n\\n\\nUNITED STATES OF AMERICA, No. 16-50345\\n\\n Plaintiff-Appellee, D.C. No.\\n 3:13-cr-04514-BEN-3\\n v.\\n\\nISSAC BALLESTEROS, AKA Lazy,\\n\\n Defendant-Appellant.\\n\\nTHOMAS, Chief Judge:\\n\\n Upon the vote of a majority of nonrecused active judges, it is ordered that\\n\\nthese cases be heard en banc pursuant to Federal Rule of Appellate Procedure 35(a)\\n\\nand Circuit Rule 35-3.\\n\\n Judge Owens did not participate in the deliberations or vote in these cases.\\n\\n\\n\\n\\n 2\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4439798/\"}]}"},"judge1":{"kind":"string","value":""},"judge2":{"kind":"string","value":""},"judge3":{"kind":"string","value":""},"exactly_three_caps":{"kind":"number","value":0,"string":"0"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4662545/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Robert Collazo\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION FILED\n UNITED STATES COURT OF APPEALS SEP 19 2019\n MOLLY C. DWYER, CLERK\n U.S. COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\nUNITED STATES OF AMERICA, No. 15-50509\n\n Plaintiff-Appellee,\n D.C. No.\n v. 3:13-cr-04514-BEN-7\n Southern District of California,\nROBERT COLLAZO, AKA Weasel, San Diego\n\n Defendant-Appellant. ORDER\n\n\nUNITED STATES OF AMERICA, No. 16-50048\n\n Plaintiff-Appellee, D.C. No.\n 3:13-cr-04514-BEN-1\n v.\n\nLINO DELGADO-VIDACA, AKA Leonard\nDelgado, AKA Spanky,\n\n Defendant-Appellant.\n\n\nUNITED STATES OF AMERICA, No. 16-50117\n\n Plaintiff-Appellee, D.C. No.\n 3:13-cr-04514-BEN-4\n v.\n\nJULIO RODRIGUEZ, AKA Sniper,\n\n Defendant-Appellant.\n\fUNITED STATES OF AMERICA, No. 16-50195\n\n Plaintiff-Appellee, D.C. No.\n 3:13-cr-04514-BEN-2\n v.\n\nSTEVEN AMADOR, AKA Gordo, AKA\nInsane,\n\n Defendant-Appellant.\n\n\nUNITED STATES OF AMERICA, No. 16-50345\n\n Plaintiff-Appellee, D.C. No.\n 3:13-cr-04514-BEN-3\n v.\n\nISSAC BALLESTEROS, AKA Lazy,\n\n Defendant-Appellant.\n\nTHOMAS, Chief Judge:\n\n Upon the vote of a majority of nonrecused active judges, it is ordered that\n\nthese cases be heard en banc pursuant to Federal Rule of Appellate Procedure 35(a)\n\nand Circuit Rule 35-3.\n\n Judge Owens did not participate in the deliberations or vote in these cases.\n\n\n\n\n 2\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Robert Collazo\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION FILED\\n UNITED STATES COURT OF APPEALS SEP 19 2019\\n MOLLY C. DWYER, CLERK\\n U.S. COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\nUNITED STATES OF AMERICA, No. 15-50509\\n\\n Plaintiff-Appellee,\\n D.C. No.\\n v. 3:13-cr-04514-BEN-7\\n Southern District of California,\\nROBERT COLLAZO, AKA Weasel, San Diego\\n\\n Defendant-Appellant. ORDER\\n\\n\\nUNITED STATES OF AMERICA, No. 16-50048\\n\\n Plaintiff-Appellee, D.C. No.\\n 3:13-cr-04514-BEN-1\\n v.\\n\\nLINO DELGADO-VIDACA, AKA Leonard\\nDelgado, AKA Spanky,\\n\\n Defendant-Appellant.\\n\\n\\nUNITED STATES OF AMERICA, No. 16-50117\\n\\n Plaintiff-Appellee, D.C. No.\\n 3:13-cr-04514-BEN-4\\n v.\\n\\nJULIO RODRIGUEZ, AKA Sniper,\\n\\n Defendant-Appellant.\\n\\fUNITED STATES OF AMERICA, No. 16-50195\\n\\n Plaintiff-Appellee, D.C. No.\\n 3:13-cr-04514-BEN-2\\n v.\\n\\nSTEVEN AMADOR, AKA Gordo, AKA\\nInsane,\\n\\n Defendant-Appellant.\\n\\n\\nUNITED STATES OF AMERICA, No. 16-50345\\n\\n Plaintiff-Appellee, D.C. No.\\n 3:13-cr-04514-BEN-3\\n v.\\n\\nISSAC BALLESTEROS, AKA Lazy,\\n\\n Defendant-Appellant.\\n\\nTHOMAS, Chief Judge:\\n\\n Upon the vote of a majority of nonrecused active judges, it is ordered that\\n\\nthese cases be heard en banc pursuant to Federal Rule of Appellate Procedure 35(a)\\n\\nand Circuit Rule 35-3.\\n\\n Judge Owens did not participate in the deliberations or vote in these cases.\\n\\n\\n\\n\\n 2\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4473,"cells":{"id":{"kind":"number","value":4662893,"string":"4,662,893"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Mary Riggs v. Airbus Helicopters, Inc."},"decision_date":{"kind":"string","value":"2019-09-20"},"docket_number":{"kind":"string","value":"18-16396"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Mary M. Schroeder, Diarmuid F. O’Scannlain, and Johnnie B. Rawlinson, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"RAWLINSON, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nMARY RIGGS, as Personal No. 18-16396\\nRepresentative of the ESTATE OF\\nJONATHAN NEIL UDALL, for the D.C. No.\\nbenefit of the ESTATE OF JONATHAN 2:18-cv-00912-\\nNEIL UDALL, and PHILIP AND JCM-GWF\\nMARLENE UDALL as Next of Kin and\\nNatural Parents of JONATHAN NEIL\\nUDALL, deceased, OPINION\\n Plaintiff-Appellee,\\n\\n v.\\n\\nAIRBUS HELICOPTERS, INC.,\\n Defendant-Appellant,\\n\\n v.\\n\\nMATTHEW HECKER; DANIEL\\nFRIEDMAN; BRENDA HALVORSON;\\nGEOFFREY EDLUND; ELLING B.\\nHALVORSON; JOHN BECKER; ELLING\\nKENT HALVORSON; LON A.\\nHALVORSON; SCOTT BOOTH;\\nPAPILLON AIRWAYS, INC., DBA\\nPapillon Grand Canyon Helicopters;\\nXEBEC LLC,\\n Defendants-Appellees.\\n\\n2 RIGGS V. AIRBUS HELICOPTERS\\n\\n Appeal from the United States District Court\\n for the District of Nevada\\n James C. Mahan, District Judge, Presiding\\n\\n Argued and Submitted February 14, 2019\\n San Francisco, California\\n\\n Filed September 20, 2019\\n\\n Before: Mary M. Schroeder, Diarmuid F. O’Scannlain,\\n and Johnnie B. Rawlinson, Circuit Judges.\\n\\n Opinion by Judge Rawlinson;\\n Dissent by Judge O’Scannlain\\n\\n\\n SUMMARY*\\n\\n\\n Federal Officer Removal Statute\\n\\n The panel affirmed the district court’s order granting\\nmotions to remand to state court a case that had been\\nremoved to federal court pursuant to 28 U.S.C. § 1442(a)(1).\\n\\n Following a fatal helicopter crash, plaintiffs filed suit in\\nNevada state court against the owners of the helicopter and\\nthe manufacturer, Airbus Helicopters, Inc. Airbus removed\\nthe action to federal court on the basis of § 1442(a)(1), which\\npermits removal of an action against “any officer (or any\\nperson acting under that officer) of the United States or of\\n\\n *\\n This summary constitutes no part of the opinion of the court. It has\\nbeen prepared by court staff for the convenience of the reader.\\n\\n RIGGS V. AIRBUS HELICOPTERS 3\\n\\nany agency thereof, in an official or individual capacity, for\\nor relating to any act under color of such office.”\\n\\n Federal Aviation Administration regulations set forth\\nstandards for certification of helicopters. Pursuant to\\n49 U.S.C. § 44702(d)(1), the FAA delegated to Airbus the\\nauthority to issue Supplemental Certificates for design\\nchanges to type-certified aircraft.\\n\\n Agreeing generally with the Seventh Circuit, and applying\\nWatson v. Philip Morris Cos., 551 U.S. 142 (2007), the panel\\nheld that Airbus failed to meet the “acting under” requirement\\nof § 1442(a)(1) because, in issuing Supplemental Certificates\\npursuant to its FAA delegation, Airbus was merely\\ncomplying with regulatory standards. The panel concluded\\nthat an aircraft manufacturer does not act under a federal\\nofficer when it exercises designated authority to certify\\ncompliance with governing federal regulations.\\n\\n Dissenting, Judge O’Scannlain wrote that Airbus acted\\nunder a federal agency because it undertook duties on the\\nFAA’s behalf, and the majority’s contrary holding\\nmisunderstood the FAA’s regulatory regime and misapplied\\nWatson.\\n\\n\\n COUNSEL\\n\\nCarter G. Phillips (argued), Sidley Austin LLP, Washington,\\nD.C.; Yvette Ostolaza and Robert S. Velevis, Sidley Austin\\nLLP, Dallas, Texas; David R. Carpenter, Sidley Austin LLP,\\nLos Angeles, California; James J. Pisanelli and Todd L. Bice,\\nPisanelli Bice PLLC, Las Vegas, Nevada; for Defendant-\\nAppellant.\\n\\n4 RIGGS V. AIRBUS HELICOPTERS\\n\\nGary C. Robb (argued) and Anita Porte Robb, Robb & Robb\\nLLC, Kansas City, Missouri; Lawrence J. Smith, Bertoldo\\nBaker Carter & Smith, Las Vegas, Nevada; for Plaintiffs-\\nAppellees.\\n\\nPatrick J. Kearns (argued), Wilson Elser Moskowitz Edelman\\n& Dicker LLP, San Diego, California, for Defendants-\\nAppellees.\\n\\nLauren L. Haertlein, General Aviation Manufacturers\\nAssociation, Washington, D.C., for Amicus Curiae General\\nAviation Manufacturers Association.\\n\\n\\n OPINION\\n\\nRAWLINSON, Circuit Judge:\\n\\n Appellant-Defendant Airbus Helicopters, Inc. (AHI)\\nappeals the district court’s order granting motions to remand\\nto state court. AHI contended that it properly removed this\\ncase to federal district court pursuant to 28 U.S.C.\\n§ 1442(a)(1) (§ 1442(a)(1)). According to AHI, the district\\ncourt erroneously determined that AHI did not satisfy the\\n“acting under” requirement of § 1442(a)(1). Reviewing de\\nnovo, we affirm the judgment of the district court.\\n\\nI. BACKGROUND\\n\\n In February, 2018, John Udall, a resident of the United\\nKingdom, was killed in a helicopter crash while touring the\\nGrand Canyon. The helicopter (Crashed Helicopter) was\\n\\n RIGGS V. AIRBUS HELICOPTERS 5\\n\\nowned and operated by several of the Hecker Defendants1 and\\nmanufactured by AHI.\\n\\n Plaintiff-Appellee Mary Riggs (Riggs) filed this action in\\nNevada state court against AHI and the Hecker Defendants,\\nalleging that the Crashed Helicopter was defectively designed\\nbecause the fuel tank was not crash-resistant, and could not\\nwithstand an impact of a minimal or moderate nature without\\nbursting into flames and engulfing the passenger\\ncompartment.2\\n\\n AHI removed the case to federal district court, asserting\\n§ 1442(a)(1) as the basis for removal. That provision permits\\nremoval to federal court of an action against “any officer (or\\nany person acting under that officer) of the United States or\\nof any agency thereof, in an official or individual capacity,\\nfor or relating to any act under color of such office.”\\n28 U.S.C. § 1442(a)(1). Riggs and the Hecker Defendants\\nseparately moved to remand the case to Nevada state court,\\non the basis that AHI did not meet the requirements of\\n§ 1442(a)(1).\\n\\n\\n\\n\\n 1\\n The named Hecker Defendants are: Matthew Hecker, Daniel\\nFriedman, Brenda Halvorson, Geoffrey Edlund, Elling B. Halvorson, John\\nBecker, Elling Kent Halvorson, Lon A. Halvorson, Scott Booth, and\\nPapillon Airways, Inc., DBA Papillon Grand Canyon Helicopters, and\\nXebec LLC.\\n 2\\n In this appeal, the Hecker Defendants are Defendants-Appellees\\nwhose interests are aligned with the interests of Riggs.\\n\\n6 RIGGS V. AIRBUS HELICOPTERS\\n\\n While the motions to remand were pending before the\\ndistrict court, AHI moved to dismiss the lawsuit pursuant to\\nFederal Rule of Civil Procedure 12(b)(2) and (b)(6). 3\\n\\n The district court granted Hecker and Riggs’s motions to\\nremand. Noting that we have not directly addressed\\n§ 1442(a)(1) removal based on an FAA delegation, the\\ndistrict court relied primarily on the Seventh Circuit decision\\nof Lu Junhong v. Boeing Co., 792 F.3d 805 (7th Cir. 2015)\\naddressing an almost identical situation. After applying the\\nreasoning set forth in Lu Junhong, the district court ruled that\\nAHI failed to meet the “acting under” requirement of\\n§ 1442(a)(1) because AHI’s activities “pursuant to its\\n[Federal Aviation Administration] delegation are rule\\ncompliance rather than rule making.”\\n\\nII. STANDARD OF REVIEW\\n\\n “We review de novo a district court’s decision to remand\\na removed case . . .” Corona-Contreras v. Gruel, 857 F.3d\\n1025, 1028 (9th Cir. 2017) (citation omitted).\\n\\nIII. DISCUSSION\\n\\n Before turning to the issue before us, we first review the\\nstatutory framework that sets the stage for our decision.\\n\\n Congress has charged the Federal Aviation\\nAdministration (FAA) with regulating aviation safety in the\\nUnited States pursuant to the Federal Aviation Act, 49 U.S.C.\\n§ 40101, et seq. See Martin ex rel. Heckman v. Midwest Exp.\\n\\n 3\\n Because we affirm the district court’s order granting the motions to\\nremand, AHI’s motion to dismiss is now moot.\\n\\n RIGGS V. AIRBUS HELICOPTERS 7\\n\\nHoldings, Inc., 555 F.3d 806, 808 (9th Cir. 2009). Pursuant\\nto this authority, the FAA promulgated the Federal Aviation\\nRegulations (FARs). See 14 C.F.R. § 1.1 et. seq. Standards\\nfor certification of helicopters, such as the Crashed\\nHelicopter, are set forth in 14 C.F.R. § 27.1.\\n\\n After demonstrating compliance with the FARs, an\\naircraft owner may obtain a certificate from the FAA\\napproving the aircraft’s design. See 49 U.S.C. § 44704(a)(1);\\n14 C.F.R. §§ 21.21, et. seq. The FAA requires a\\nsupplemental type certificate (Supplemental Certificate) for\\nany design changes to a type-certificated aircraft. See\\n49 U.S.C. § 44704(b). Therefore, AHI could make no design\\nchange to the Crashed Helicopter absent the issuance of a\\nSupplemental Certificate.\\n\\n To help ameliorate the effect of the FAA’s limited\\nresources, 49 U.S.C. § 44702(d)(1) provides that the FAA\\n“may delegate to a qualified private person . . . a matter\\nrelated to–(A) the examination, testing, and inspection\\nnecessary to issue a certificate under this chapter; and\\n(B) issuing the certificate.” The Eighth Circuit has described\\nthis delegation approach as a means of “reducing\\ngovernmental costs [and] eas[ing] the burden of regulation on\\nthe aviation community by expediting the issuance of\\nrequested certifications.” Charlima, Inc. v. United States,\\n873 F.2d 1078, 1081 (8th Cir. 1989).\\n\\n Pursuant to 49 U.S.C. § 44702(d)(1), the FAA instituted\\nthe Organization Designation Authorization (Designation)\\nprogram to delegate to organizations, such as AHI, the FAA’s\\nauthority to inspect aircraft designs and issue certifications.\\nSee 14 C.F.R. § 183.41. An FAA Designation “allows an\\norganization to perform specified functions on behalf of the\\n\\n8 RIGGS V. AIRBUS HELICOPTERS\\n\\nAdministrator related to engineering, manufacturing,\\noperations, airworthiness, or maintenance.” 14 C.F.R.\\n§ 183.41(a). In 2009, AHI became an FAA-certified\\nDesignation holder with authority to issue Supplemental\\nCertificates.4\\n\\n The ongoing dispute in this appeal is whether AHI\\nsatisfies the “acting under” prong of § 1442(a)(1). AHI\\ncontends that it was formally delegated legal authority from\\nthe FAA, and that this delegation establishes that it was\\nacting under the federal government for purposes of\\n§ 1442(a)(1). As an FAA delegee, AHI asserts that it does\\nmore than merely comply with federal law–it assists in\\ncarrying out the FAA’s duties. Acknowledging that it does\\nnot make or promulgate federal law, AHI argues that the\\ndistrict court erroneously relied on the holding from the\\nSeventh Circuit requiring entities to demonstrate a\\nengagement in rule-making rather than rule compliance to\\nsatisfy the “acting under” requirement of § 1442(a)(1).\\n\\n As a private party, AHI must demonstrate that it was\\n“involved in an effort to assist, or to help carry out, the duties\\nor tasks of the federal superior” to satisfy the “acting under”\\nrequirement of § 1442(a)(1). Fidelitad, Inc v. Insitu, Inc., 904\\nF.3d 1095, 1099 (9th Cir. 2018) (citation and internal\\nquotation marks omitted). The pivotal question then is\\n\\n 4\\n The dissent references the recent crashes of the Boeing 737 Max to\\nsupport the argument that Boeing is authorized to self-certify the safety of\\nits fleet. See Dissenting Opinion, p. 24 n.2. However, in the aftermath of\\nthe tragic crashes, it became clear that the FAA was calling the shots, not\\nBoeing. See Luz Lato, Michael Laris, Lori Aratani and Damian Paletta,\\nDemocracy Dies in Darkness, Washington Post (March 13, 2019)\\n(reporting that the FAA grounded the 737 Max planes after a\\n“recommendation” from Boeing).\\n\\n RIGGS V. AIRBUS HELICOPTERS 9\\n\\nwhether AHI was assisting the FAA to carry out the FAA’s\\nduties or whether AHI was “simply complying with the law,”\\nwhich would not bring it within the scope of § 1442(a)(1).\\nId. at 1100.5\\n\\n In Watson v. Philip Morris Cos., Inc., 551 U.S. 142,\\n145–47 (2007), the United States Supreme Court addressed\\n§ 1442(a)(1) in the context of a defendant tobacco company’s\\ncontentions that its close working relationship with a federal\\nagency that directed and monitored its activities constituted\\nconduct that satisfied the “acting under” requirement.\\nRejecting this argument, the Court held that Philip Morris did\\nnot satisfy the “acting under” requirement of § 1442(a)(1).\\nId. at 157. In the Court’s view, Philip Morris’s mere\\ncompliance with federal regulations did not constitute “a\\nstatutory basis for removal.” Id. at 153 (“A private firm’s\\ncompliance (or noncompliance) with federal laws, rules, and\\nregulations does not by itself fall within the scope of the\\nstatutory phrase ‘acting under’ a federal official.”).\\nAccording to the Supreme Court, the “acting under”\\nrequirement is not satisfied by mere compliance with a\\nregulation “even if the regulation is highly detailed and even\\nif the private firm’s activities are highly supervised and\\nmonitored.”6 Id. The Court in Watson also noted that Philip\\n\\n\\n 5\\n The dissent notes that the FAA authorizes certification of others.\\nSee Dissenting Opinion, p. 28. However, that circumstance has zero effect\\non the legal analysis dictated by Watson.\\n 6\\n The dissent makes an effort to distinguish the controlling effect of\\nWatson by focusing on the delegation by the FAA of authority to issue\\ncertificates. See Dissenting Opinion, pp. 29–30. However, as the Seventh\\nCircuit cogently observed, several other industries, including the energy\\nand health sectors, certify compliance without “acting under” the\\nregulating agencies. Lu Junhong, 792 F.3d at 809–10. As the Seventh\\n\\n10 RIGGS V. AIRBUS HELICOPTERS\\n\\nMorris had never been delegated legal authority from a\\nfederal agency. See id. at 156.\\n\\n Although we have not directly addressed removal under\\n§ 1442(a)(1) based on an FAA designation, we have\\naddressed removal under § 1442(a) in other contexts. In\\nGoncalves By & Through Goncalves v. Rady Children’s\\nHosp. San Diego, 865 F.3d 1237, 1245–47 (9th Cir. 2017),\\nwe considered whether the congressionally-authorized\\ndelegation of insurance claims administration by the United\\nStates Office of Personnel Management (OPM) to private\\ninsurers conferred federal officer status upon those private\\ninsurers for purposes of § 1442(a)(1). In Goncalves, the\\nprivate insurer placed a subrogation lien on the proceeds of a\\nsettlement reached on behalf of Goncalves with Rady\\nChildren’s Hospital. See id. at 1243. Goncalves filed a\\nmotion in state court to expunge the lien, and the private\\ninsurer removed the matter to federal court. See id. In\\ndetermining whether removal was proper, we addressed the\\n“acting under” provision of § 1442(a)(1). We explained that\\n“[f]or a private entity to be ‘acting under’ a federal officer,\\nthe private entity must be involved in an effort to assist, or to\\nhelp carry out, the duties or tasks of the federal superior.” Id.\\nat 1245 (citation omitted) (emphases in the original). We\\n\\n\\nCircuit observed: “We doubt that the Justices would see a dispositive\\ndifference between certified compliance and ordinary compliance. Indeed,\\nWatson rejected an argument . . . that a federal agency hadn’t ‘just’\\nrequired compliance with regulations but also had ‘delegated authority’ to\\nthe manufacturer to determine compliance with those regulations. The\\n[Supreme] Court thought that inadequate to make the manufacturer a\\nperson ‘acting under’ the agency.” Id. at 809 (quoting Watson, 551 U.S.\\nat 154–57). We agree with the Seventh Circuit that the Supreme Court in\\nWatson did not articulate a distinction between “certified” compliance and\\ncompliance generally. Watson, 551 U. S. at 151–52.\\n\\n RIGGS V. AIRBUS HELICOPTERS 11\\n\\nnoted that the actions taken by the private entity “must go\\nbeyond simple compliance with the law and help officers\\nfulfill other basic governmental tasks.” Id. (citation and\\nalterations omitted).\\n\\n We ultimately concluded that the private insurer was\\n“acting under” a federal officer. Not only did the OPM enter\\ninto a contract with the private insurer for a negotiated fee,\\nthe contract also authorized the insurer to pursue subrogation\\nbenefits that would otherwise be pursued by OPM. See id. at\\n1246–47. But for the actions of the private insurers, OPM\\nwould not be reimbursed when an employee successfully\\npursued a third-party for payment of healthcare expenses\\nincurred by the employee. See id. at 1247. OPM delegated\\nto the private insurer the authority to pursue subrogation\\nclaims on behalf of the government. See id. at 1247. Under\\nthese circumstances, we concluded that the private insurer\\nwas “acting under” a federal officer. Id. We reasoned that\\nthe pursuit of subrogation claims took the private insurer\\n“well beyond simple compliance with the law and helped\\n[federal] officers fulfill other basic governmental tasks. Id.\\n(quoting Watson, 551 U.S. at 153) (alteration and internal\\nquotation marks omitted).\\n\\n We recently grappled with the “acting under” requirement\\nof § 1442(a)(1) in Fidelitad, 904 F.3d 1095, and we included\\na thoughtful discussion of Watson.7 In Fidelitad, a private\\ncompany (Fidelitad) that sold drones in Latin America placed\\norders for the drones from a private drone manufacturer\\n(Insitu). See id. at 1097–98. The sales in Latin America\\n\\n\\n 7\\n Our colleague in dissent contends that the majority opinion\\nmisapplies Watson. See Dissenting Opinion, p. 19. However, that\\ncontention completely ignores our similar analysis of Watson in Fidelitad.\\n\\n12 RIGGS V. AIRBUS HELICOPTERS\\n\\nrequired “export licenses from the federal government.” Id.\\nat 1098. The two companies subsequently had a falling out\\nover the provisions in the export licenses. See id.\\nConsequently, Fidelitad filed an action against Insitu\\nasserting, among other claims, that Insitu improperly delayed\\nshipment of Fidelitad’s order. See id. at 1097. Insitu moved\\nfor removal under § 1442(a)(1), arguing that it was “acting\\nunder” the federal government because it delayed orders to\\nFidelitad to ensure that Fidelitad complied with federal export\\nlaws. See id. at 1098–100.\\n\\n We held that in order to invoke § 1442(a)(1) removal, a\\ndefendant “must demonstrate that (a) it is a person within the\\nmeaning of the statute; (b) there is a causal nexus between its\\nactions, taken pursuant to a federal officer’s directions, and\\nplaintiff’s claims; and (c) it can assert a colorable federal\\ndefense.” Id. at 1099 (citations and internal quotation marks\\nomitted). We identified the “central issue” in the case as\\n“whether Insitu was acting pursuant to a federal officer’s\\ndirections” when denying shipment of the drones. Id.\\n(internal quotation marks omitted). We described the\\n“paradigm” of a private entity “acting under a federal officer”\\nas an individual “acting under the direction of a federal law\\nenforcement officer,” such as a private citizen assisting in a\\nlaw enforcement raid. Id. (citations and internal quotation\\nmarks omitted).\\n\\n We focused on the fact that no federal officer directed\\nInsitu to delay the orders. See id. at 1100. Nevertheless,\\nInsitu maintained that it was “acting under” a federal officer\\nbecause the delay was for the purpose of ensuring compliance\\nwith the International Traffic in Arms Regulation, 22 C.F.R.\\n§§ 120–130, which governs the sale of military goods to\\nforeign governments. See id. Citing Watson and Lu\\n\\n RIGGS V. AIRBUS HELICOPTERS 13\\n\\nJunhong, we reiterated that mere compliance with governing\\nregulations “does not bring a private actor within the scope of\\nthe federal officer removal statute.” Id.\\n\\n We explained that Watson involved allegations that a\\ncigarette company sold cigarettes that delivered more tar and\\nnicotine than advertised. See id. The company removed the\\ncase on the basis that it was acting under the direction of a\\nfederal officer by using a required test protocol that was\\n“closely monitored by the federal government.” Id. We\\ndescribed the Supreme Court as unpersuaded by the\\ncompany’s position, noting its holding that removal was not\\nappropriate even though “a federal agency directs, supervises,\\nand monitor’s a company’s activities in considerable detail.”\\nId. (citation and internal quotation marks omitted).\\nAccording to our reading of Watson in Fidelitad, extensive\\n“federal regulation alone” did not suffice to meet the “acting\\nunder” requirement of § 1442(a)(1). Id. We also observed\\nthat the Supreme Court’s rationale in Watson counseled\\nrejection of Insitu’s argument regarding its stated attempts to\\nnot only comply with federal regulations, but to “also\\nattempt[] to enforce specific provisions in Fidelitad’s export\\nlicenses.” Id. We recognized the Supreme Court’s rejection\\nin Watson of the notion “that a company subject to a\\nregulatory order (even a highly complex order) is acting\\nunder a federal officer.” Id. (quoting Watson, 551 U.S.\\nat 152–53) (parallel citation and internal quotation marks\\nomitted).\\n\\n Finally, in Fidelitad we acknowledged that government\\ncontractors may “act under federal officers.” Id. (citation\\nomitted). But, we clarified, the government did not contract\\nwith Insitu and the regulation and export licenses did not\\n“establish the type of formal delegation that might authorize\\n\\n14 RIGGS V. AIRBUS HELICOPTERS\\n\\nInsitu to remove the case.” Id. at 1101 (quoting Watson,\\n551 U.S. at 156) (alteration omitted).\\n\\n The dissent seeks to minimize the persuasive power of\\nFidelitad by commenting that a different statutory regime\\nwas involved. See Dissenting Opinion, p. 30 n.3. However,\\nthe dissent’s summary comment elides the fact that we were\\nconfronted with the identical issue in Fidelitad that we\\nresolve in this case, whether the “acting under” requirement\\nof § 1442(a)(1) was satisfied. The dissent also fails to grapple\\nwith the reality that in Fidelitad, we cited with approval the\\nSeventh Circuit’s Lu Junhong decision. Finally, despite\\ncriticizing the precedent cited by the majority, the dissent did\\nnot, and cannot, cite one case from this circuit that supports\\nits analysis of the “acting under” requirement. The best the\\ndissent can muster is a case from the Eleventh Circuit,\\nMagnin v. Teledyne Cont’l Motors, 91 F.3d 1424 (11th Cir.\\n1996), decided eleven years prior to Watson and an argument\\nfrom a Solicitor General that was rejected by the Supreme\\nCourt. See Dissenting Opinion, pp. 26–27.\\n\\n Our analysis in Fidelitad is generally consistent with the\\napproach taken by the Seventh Circuit in Lu Junhong, the\\ncase relied on by the district court. Lu Junhong involved a\\ndispute over the design of a plane that broke apart during\\nflight while landing in San Francisco. See 792 F.3d at 807.\\nAfter being initially sued in state court, Boeing contended\\nthat it was entitled to removal under § 1442(a)(1) because it\\nwas “acting under” the authority of the federal government,\\nhaving been granted the authority by the FAA “to use FAA-\\napproved procedures to conduct analysis and testing required\\nfor the issuance of type, production, and airworthiness\\ncertifications for aircraft under Federal Aviation\\n\\n RIGGS V. AIRBUS HELICOPTERS 15\\n\\nRegulations.” Id. at 807–08. Boeing’s argument in Lu\\nJunhong mirrors AHI’s posture in this appeal.\\n\\n The Seventh Circuit rejected Boeing’s argument. See id.\\nat 810. The court reasoned that “we know from [Watson] that\\nbeing regulated, even when a federal agency directs,\\nsupervises, and monitors a company’s activities in\\nconsiderable detail, is not enough to make a private firm a\\nperson “acting under” a federal agency.” Id. at 809 (citation\\nand internal quotation marks omitted).\\n\\n In discussing its rejection of Boeing’s argument that it,\\nunlike Philip Morris in Watson, possessed formal delegation\\nfrom the FAA of the authority to certify compliance, the\\nSeventh Circuit explained:\\n\\n [T]his [authority] is still a power to certify\\n compliance, not a power to design the rules\\n for airworthiness. The FAA permits Boeing to\\n make changes to its gear after finding that the\\n equipment as modified meets the FAA’s\\n standards; it does not permit Boeing to use\\n gear that meets Boeing’s self-adopted criteria.\\n\\nId. at 810 (emphasis in the original).\\n\\n The Seventh Circuit interpreted Watson as requiring the\\ndelegation of “rule making” authority rather than “rule\\ncompliance” certification to meet the “acting under” standard.\\nId. The Seventh Circuit suggested that, at a minimum,\\nBoeing would have to be delegated “a power to issue\\nconclusive certification of compliance.” Id. (emphasis in the\\noriginal). Because Boeing’s self-certification was not binding\\non either the FAA or a reviewing court, the Seventh Circuit\\n\\n16 RIGGS V. AIRBUS HELICOPTERS\\n\\ndetermined that Boeing did not come within the “acting\\nunder” provision of § 1442(a)(1). See id.\\n\\n The district court in this case adopted the Seventh\\nCircuit’s “rule making-compliance” distinction in finding that\\nAHI was not “acting under” a FAA delegation. Although we\\ncited Lu Junhong with approval in Fidelitad, 904 F.3d\\nat 1100, we notably did not incorporate the Seventh Circuit’s\\nrule-making-rule compliance dichotomy. Rather, we\\nreferenced Lu Junhong for the proposition that compliance\\nwith the law “does not bring a private actor within the scope\\nof the federal officer removal statute” and neither does\\ndelegation of authority “to self-certify compliance with the\\nrelevant regulations.” Id. (quoting Lu Junhong, 729 F.3d at\\n808–10).\\n\\n We are persuaded by the consistent reasoning of Watson,\\nGoncalves, and Fidelitad to conclude that the district court\\ncommitted no error in finding that AHI was not “acting\\nunder” a federal officer by virtue of becoming an FAA-\\ncertified Designation holder with authority to issue\\nSupplemental Certificates. AHI concedes that, as a\\nDesignation holder, it “must perform all delegated functions\\nin accordance with a detailed, FAA-approved procedures\\nmanual specific to each [Designation] holder.” (emphasis\\nadded). Language such as “in accordance with” and “FAA-\\napproved” suggest a relationship based on compliance rather\\nthan assistance to federal officers. Cf. Goncalves, 865 F.3d\\nat 1245–46 (noting that a private insurer was “acting under”\\na federal officer when it entered into a contract with a\\ngovernment agency to pursue third-party reimbursements).\\nImportantly, one of the regulations circumscribing an FAA\\ndelegee’s authority to certify provides that “each applicant\\nmust allow the FAA to make any inspection and any flight\\n\\n RIGGS V. AIRBUS HELICOPTERS 17\\n\\nand ground test necessary to determine compliance with the\\napplicable requirements of this subchapter.”8 14 C.F.R.\\n§ 21.33 (emphasis added). This language explicitly denotes\\ncompliance and, as discussed, mere compliance with federal\\ndirectives does not satisfy the “acting under” requirement of\\n§ 1442(a)(1), even if the actions are “highly supervised and\\nmonitored.” Watson, 551 U.S. at 153; see also Goncalves,\\n865 F.3d at 1245; Fidelitad, 904 F.3d at 1100.\\n\\n AHI concedes that it cannot make design changes without\\napproval from the FAA. At oral argument, AHI even\\nacknowledged that the FAA has the authority to rescind any\\naction taken by AHI in connection with the certification\\nprocess. These facts demonstrate that AHI was duty-bound\\nto follow prescriptive rules set forth by the FAA, thus falling\\nwithin the “simple compliance with the law” circumstance\\nthat does not meet the “acting under” standard. Goncalves,\\n865 F.3d at 1247; see also Fidelitad, 904 F.3d at 1100. In\\nsum, AHI’s actions as an issuer of Supplemental Certificates\\nfit squarely within the precept of mere compliance with\\nregulatory standards and outside the “acting under” provision\\nof 1442(a)(1). Watson, 551 U.S. at 153.\\n\\n We foreshadowed the outcome of this case in Fidelitad,\\nnoting with approval the determination in Lu Junhong,\\n792 F.3d at 808–10, that an “airplane manufacturer was not\\nacting under a federal officer . . . although federal law gave\\nthe manufacturer authority to self-certify compliance with the\\nrelevant regulations.” 904 F.3d at 1100. In keeping with our\\nanalysis in Fidelitad, we hold that AHI was not acting under\\n\\n\\n 8\\n The dissent completely disregards this language requiring\\ncompliance with FAA regulations. See Dissenting Opinion, pp. 29–30\\n(denying Airbus’ compliance obligation).\\n\\n18 RIGGS V. AIRBUS HELICOPTERS\\n\\na federal officer although federal regulations gave AHI\\nauthority to issue Supplemental Certificates in accordance\\nwith FAA regulations. See id. Although we agree generally\\nwith the holding of Lu Junhong, as we did in Fidelitad, we\\ndecline to adopt the rulemaking-rule compliance distinction\\narticulated by the Seventh Circuit and relied on by the district\\ncourt. See Lu Junhong, 792 F.3d at 810. We are content to\\nrely on the more clearly articulated common analyses from\\nWatson, Goncalves, and Fidelitad focusing on whether the\\nprivate entity is engaged in mere compliance with federal\\nregulations. See e.g., Fidelitad, 904 F.3d at 1100.\\n\\n Finally, AHI relies heavily on the district court decision\\nof Estate of Hecker v. Robinson Helicopter Co., 2013 WL\\n5674982 (E.D. Wash. 2013). In Hecker, the plaintiff brought\\nan action in state court, asserting state law claims for\\nwrongful death, negligence, and products liability arising\\nfrom a helicopter crash. See id. at *1. There, as here, the\\nhelicopter manufacturer removed the case to federal court\\nunder § 1442(a)(1), and the plaintiff moved to remand the\\ncase for lack of jurisdiction. See id. The district court held\\nthat the defendant’s status as a Designation holder satisfied\\nthe “acting under” requirement. Id. at *2. However, not only\\nis Hecker non-binding, it was decided before our decisions in\\nGoncalves and Fidelitad.\\n\\nIV. CONCLUSION\\n\\n AHI inspected and certified its aircraft pursuant to FAA\\nregulations and federal law and could not make any structural\\nor design changes without the consent of the FAA. The\\nSupreme Court decision in Watson and our decisions in\\nGoncalves and Fidelitad fully support the proposition that\\nAHI’s mere compliance with federal regulations did not\\n\\n RIGGS V. AIRBUS HELICOPTERS 19\\n\\nsatisfy the “acting under” requirement of § 1442(a)(1). We\\njoin the Seventh Circuit in concluding that an aircraft\\nmanufacturer does not act under a federal officer when it\\nexercises designated authority to certify compliance with\\ngoverning federal regulations.9\\n\\n AFFIRMED.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4440146/\", \"author_raw\": \"RAWLINSON, Circuit Judge:\"}, {\"author\": \"O’SCANNLAIN, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"O’SCANNLAIN, Circuit Judge, dissenting:\\n\\n The federal officer removal statute authorizes a defendant\\nin a state court civil action to remove the case to federal court\\nif it is “acting under” a federal agency. 28 U.S.C.\\n§ 1442(a)(1). In this case, the Federal Aviation\\nAdministration (“FAA”) “delegate[d]” to Airbus Helicopters,\\nInc. (“Airbus”) the authority to issue “certificates” on the\\nagency’s behalf—certificates that the FAA must otherwise\\nissue on its own before an aircraft can be lawfully flown.\\n49 U.S.C. §§ 44702(d)(1), 44704. Because Airbus undertakes\\nthese duties on the FAA’s behalf, I conclude that Airbus\\n“act[s] under” a federal agency within the meaning of\\n§ 1442(a)(1). I believe that our court’s contrary holding\\nmisunderstands the FAA’s regulatory regime and misapplies\\nthe Supreme Court’s decision in Watson v. Philip Morris\\nCos., 551 U.S. 142 (2007).\\n\\n I respectfully dissent.\\n\\n\\n 9\\n Because we conclude that AHI failed to meet the “acting under”\\nrequirement of § 1442(a)(1), we need not and do not address any other\\narguments advanced by the parties on appeal. See Fidelitad, 904 F.3d\\nat 1101 n.4.\\n\\n20 RIGGS V. AIRBUS HELICOPTERS\\n\\n I\\n\\n This case turns on the interaction between two statutes:\\nthe Federal Aviation Act, see 49 U.S.C. § 40103 et seq., and\\nthe federal officer removal statute, see 28 U.S.C. § 1442.\\n\\n A\\n\\n 1\\n\\n In the Federal Aviation Act, Congress charged the FAA\\nwith the duty to establish “minimum standards required in the\\ninterest of safety” for the “design, material, construction,\\nquality of work, and performance of aircraft, aircraft engines,\\nand propellers.” 49 U.S.C. § 44701(a)(1). The FAA\\npromulgated (and regularly revises) the Federal Aviation\\nRegulations, which delineate such standards. See 14 C.F.R.\\n§ 1.1 et seq. Given the technological complexity of modern\\naircraft, these safety standards dictate an aircraft’s design\\nfrom its critical components to its smallest detail. For\\ninstance, a helicopter—or, in the FAA’s parlance, a\\n“rotorcraft”—must satisfy regulations covering everything\\nfrom its “landing gear” to the “number of self-contained,\\nremovable ashtrays.” Id. §§ 27.729, 27.853(c)(1).\\n\\n Besides imposing substantive safety standards, the Act\\nalso creates a “multistep certification process to monitor the\\naviation industry’s compliance.” United States v. S.A.\\nEmpresa de Viacao Aerea Rio Grandense (Varig Airlines),\\n467 U.S. 797, 804 (1984). Before an aircraft can lawfully take\\nflight, the FAA must issue a series of “certifications” or\\n“certificates”—terms that the Act uses interchangeably. The\\nfirst of these is called a “type certificate,” which the FAA\\n“shall issue” if it finds the aircraft “is properly designed and\\n\\n RIGGS V. AIRBUS HELICOPTERS 21\\n\\nmanufactured, performs properly, and meets the regulations\\nand minimum standards prescribed [by the FAA].” 49 U.S.C.\\n§ 44704(a)(1). Then, before the manufacturer can mass\\nproduce an approved design, it must obtain a “production\\ncertificate.” Id. § 44704(c). To do so, the manufacturer must\\nshow that duplicates of the design will, among other things,\\n“conform to the [type] certificate.” Id. Finally, the owner of\\neach aircraft must obtain an “airworthiness certificate” by\\nshowing that the aircraft “conforms to its type certificate and,\\nafter inspection, is in condition for safe operation.” Id.\\n§ 44704(d)(1). It is illegal to operate an aircraft without an\\nairworthiness certificate. See id. § 44711(a)(1).\\n\\n Together, these certification requirements prohibit a\\nmanufacturer (or the aircraft’s eventual owner) from altering\\nan aircraft’s design without the FAA’s approval. Instead, if a\\nmanufacturer wishes to make changes, it must seek one of\\ntwo possible certificates. If a “proposed change . . . is so\\nextensive that a substantially complete investigation of\\ncompliance . . . is required,” then the manufacturer must seek\\na new type certificate from the FAA. 14 C.F.R. § 21.19. For\\nless significant changes, the holder of a type certificate may\\nseek a “supplemental type certificate.” 49 U.S.C.\\n§ 44704(b)(1) (emphasis added); see also 14 C.F.R. § 21.113.\\nLike an ordinary type certificate, a supplemental certificate\\nauthorizes the holder then to seek production and\\nairworthiness certificates for the modified design. See id.\\n§ 21.119.\\n\\n 2\\n\\n Perhaps because of this elaborate certification process,\\nCongress offered the FAA an unusual tool to ease its\\n\\n22 RIGGS V. AIRBUS HELICOPTERS\\n\\nregulatory burden: the authority to delegate its duties to the\\nprivate sector. Specifically, the Act states:\\n\\n (d) DELEGATION.—(1) Subject to regulations,\\n supervision, and review the Administrator\\n may prescribe, the Administrator may\\n delegate to a qualified private person . . . a\\n matter related to (A) the examination, testing,\\n and inspection necessary to issue a certificate\\n under this chapter; and (B) issuing the\\n certificate.”\\n\\n49 U.S.C. § 44702(d)(1) (emphasis added); see also Varig\\nAirlines, 467 U.S. at 807 (“[T]he FAA obviously cannot\\ncomplete this elaborate compliance review process alone.\\nAccordingly, [the Act] authorizes the Secretary to delegate\\ncertain inspection and certification responsibilities to properly\\nqualified private persons.”).\\n\\n Since 1927, the FAA and its predecessor agency have\\nestablished programs delegating its certification authority to\\nthe private sector—either to individual engineers or to\\norganizations. Establishment of Organization Designation\\nAuthorization Program, 70 Fed. Reg. 59,932, 59,932 (Oct. 13,\\n2005) (codified at 14 C.F.R. pts. 21, 121, 135, 145, 183)\\n[hereinafter ODA Rule]. In 2005, the FAA exercised its\\nauthority under § 44702(d) to institute the Organization\\nDesignation Authorization (“ODA”) Program, which\\n“consolidat[es] and improve[s]” the “piecemeal\\norganizational delegations” previously developed. Id.\\nat 59,933.\\n\\n Under such program, the FAA authorizes “ODA Holders”\\nto “perform specified functions on behalf of the\\n\\n RIGGS V. AIRBUS HELICOPTERS 23\\n\\nAdministrator.” 14 C.F.R. § 183.41. ODA Holders act as\\n“representatives of the Administrator,” and when “performing\\na delegated function, [they] are legally distinct from and act\\nindependent of the organizations that employ them.” ODA\\nRule, 70 Fed. Reg. at 59,933. Further, to become an ODA\\nHolder, an organization must sign a memorandum of\\nunderstanding promising to “comply with the same standards,\\nprocedures, and interpretations applicable to FAA employees\\naccomplishing similar tasks.” Federal Aviation\\nAdministration, Organization Designation Authorization\\nProcedures, Order 8100.15, at A1-17 (2006) [hereinafter\\nODA Order].1\\n\\n Since 2009, Airbus has been a “Supplemental Type\\nCertification ODA.” Id. ¶ 2–6, at 5. In this capacity, Airbus\\nhas the authority to “develop and issue supplemental type\\ncertificates . . . and related airworthiness certificates.” Id.\\nAirbus may issue such certificates both for its own aircraft or\\nfor those of other applicants. See id. ¶ 11–7, at 88. Although\\nthe FAA may revoke Airbus’s ODA status or reconsider its\\nissuance of a specific certificate, see 49 U.S.C.\\n§ 44702(d)(2)–(3), a certificate issued by Airbus carries the\\nsame legal consequence as one issued by the FAA: it gives\\nthe FAA’s formal approval to the aircraft’s design (in the case\\n\\n\\n\\n\\n 1\\n Order 8100.15 “establishes the procedures, guidance, and limitations\\nof authority [the FAA] grant[s] to an organization” under the ODA\\nProgram. ODA Order, at i. Since 2006, the FAA has amended Order\\n8100.15, see Federal Aviation Administration, Organization Designation\\nAuthorization Procedures, Order 8100.15B (2018), but the 2006 version\\nof the Order governed at the time of the subject helicopter’s manufacture\\nand sale.\\n\\n24 RIGGS V. AIRBUS HELICOPTERS\\n\\nof a supplemental type certificate) or the aircraft itself (in the\\ncase of an airworthiness certificate).2\\n\\n B\\n\\n The federal officer removal statute permits a defendant to\\nremove to federal court a state court action brought against\\n\\n “[t]he United States or any agency thereof or\\n any officer (or any person acting under that\\n officer) of the United States or of any agency\\n thereof, in an official or individual capacity,\\n for or relating to any act under color of such\\n office . . . .”\\n\\n28 U.S.C. § 1442(a)(1) (emphasis added). In Watson, the\\nSupreme Court held that a person “act[s] under” a federal\\nofficer or agency if his actions “involve an effort to assist, or\\nto help carry out, the duties or tasks of the federal superior.”\\n551 U.S. at 152. Although a “private firm’s compliance . . .\\nwith federal laws, rules, and regulations” does not itself\\nsatisfy the statute’s “acting under” requirement, id. at 153\\n(emphasis added), a formal “delegation of legal authority”\\ngoes beyond the “usual regulator/regulated relationship,” id.\\nat 156–57. Thus, Watson counsels that the “delegation of\\nlegal authority . . . [to act] on the Government agency’s\\n\\n 2\\n In the aftermath of the recent crash of the Boeing 737 Max in\\nEthiopia, there seems to be some appetite on Capitol Hill to revisit the\\nFAA’s private-public partnership. See Thomas Kaplan, After Boeing\\nCrashes, Sharp Questions About Industry Regulating Itself, N.Y. Times\\n(Mar. 26, 2019); David Koenig & Tom Krisher, The FAA’s Oversight of\\nBoeing Will Be Examined in Senate Hearings, Time (Mar. 27, 2019). But\\nuntil (and unless) such proposals become law, we must apply the statute\\nas it presently exists.\\n\\n RIGGS V. AIRBUS HELICOPTERS 25\\n\\nbehalf” satisfies § 1442(a)(1)’s “acting under” requirement.\\nId. at 156.\\n\\n II\\n\\n Because the FAA delegates to ODA Holders its formal\\nlegal authority to issue certificates, I conclude, in respectful\\ndisagreement with the majority’s analysis, that Airbus “act[s]\\nunder” the FAA.\\n\\n A\\n\\n 1\\n\\n Beginning with the text, the Federal Aviation Act\\ncompels the conclusion that the FAA delegates formal legal\\nauthority to ODA Holders. By its own terms, 49 U.S.C.\\n§ 44702(d)(1) authorizes the FAA to “delegate” a “matter\\nrelated to” the “examination, testing, and inspection\\nnecessary to issue a certificate” and “issuing the certificate.”\\nTo “delegate” means to “give part of one’s power or work to\\nsomeone in a lower position within one’s organization.”\\nDelegate, Black’s Law Dictionary (9th ed. 2009); see also\\nDelegate, Webster’s Third New International Dictionary\\n(unabr. ed. 1986) (“[T]o entrust to another: transfer, assign,\\ncommit <power delegated by the people to the legislature>\\n<one may [delegate] one’s authority to a competent\\nassistant>”). Congress’s use of “delegate” thus suggests that\\nthe FAA may transfer its own formal legal powers to private\\npersons, and the rest of the statute accords with such\\ninterpretation. In 49 U.S.C. § 44702(a), for instance,\\nCongress established that the “Administrator of the [FAA]\\nmay issue” the long list of certificates mandated by the Act.\\nSee also 49 U.S.C. § 44704 (same). Accordingly, the\\n\\n26 RIGGS V. AIRBUS HELICOPTERS\\n\\nresponsibility to issue certificates falls in the first instance to\\nthe FAA, and it is this authority that § 44702(d)(1) allows the\\nagency to “delegate.”\\n\\n Confirming Congress’s mandate, the FAA itself describes\\nthe ODA Program as a delegation of legal authority. Under\\nthe program, ODA Holders like Airbus function as\\n“representatives of the Administrator” and “perform[] a\\ndelegated function.” ODA Rule, 70 Fed. Reg. at 59,933; see\\nalso 14 C.F.R. § 183.41 (similar). The ODA Order states that\\nthe program “delegate[s] certain types of authority to\\norganizations,” and that such designees “act on the FAA’s\\nbehalf.” ODA Order, ¶ 1–1, at 1. Further, these delegees\\n“assist” the agency and “help carry out” its manifold “duties\\n[and] tasks,” Watson, 551 U.S. at 152 (emphasis removed),\\nbecause the “[d]elegation of tasks to these organizations\\n[allows] the FAA to focus [its] limited resources on more\\ncritical areas,” ODA Rule, 70 Fed. Reg. at 59,933.\\n\\n Altogether, Congress and the FAA expressly said—time\\nand again—that the agency indeed “delegate[s]” to private\\npersons (like Airbus) the authority to issue certificates, and\\nWatson counsels that a “delegation of legal authority”\\nsatisfies § 1442(a)(1)’s “acting under” requirement. 551 U.S.\\nat 154–57. It follows that Airbus “act[s] under” the FAA.\\n\\n 2\\n\\n I am not alone in this view. The Eleventh Circuit came to\\nthe same conclusion in Magnin v. Teledyne Cont’l Motors,\\n91 F.3d 1424 (11th Cir. 1996), and the Solicitor General has\\nendorsed that court’s holding. In its briefing for Watson, the\\nSolicitor General argued that the defendant could not seek\\nremoval under the federal officer removal statute (as the\\n\\n RIGGS V. AIRBUS HELICOPTERS 27\\n\\nSupreme Court later held), but it cited Magnin to support the\\nargument that “a private citizen delegated authority to inspect\\naircraft by the [FAA] acts under a federal officer in\\nconducting such an inspection and issuing a certificate of\\nairworthiness.” Brief for the U.S. as Amicus Curiae\\nSupporting Petitioners at 26, Watson, 551 U.S. 142 (No. 05-\\n1284). “The critical point,” the Solicitor General continued,\\n“is that the individual acts on behalf of the FAA\\nAdministrator in conducting the inspection.” Id.\\n\\n B\\n\\n Despite the clear evidence of delegation, the majority\\nconcludes that Airbus’s actions as an ODA Holder constitute\\nmere “compliance” with FAA regulations. See Maj. Op.\\nat 16–18. With respect, I believe the majority is wrong.\\n\\n 1\\n\\n The majority’s critical error is that it conflates Airbus’s\\ntwo distinct roles as a manufacturer and as an FAA delegee.\\nSpecifically, an ODA Holder acts as either the regulated party\\nor the regulator—depending on the specific function\\nperformed. It is true, of course, that all manufacturers—in\\ntheir capacity as manufacturers—must comply with the\\nFAA’s numerous safety standards whenever they design or\\nbuild an aircraft. But as an ODA Holder, the organization also\\nacts as a “representative[] of the Administrator.” ODA Rule,\\n70 Fed. Reg. at 59,933. In this capacity, the manufacturer is\\n“legally distinct from” the organization, and its “authority . . .\\nto act comes from an FAA delegation.” Id. Put differently, the\\nmanufacturer doffs its “aviation industry hat” and dons its\\n“FAA hat,” and so clad, the ODA Holder exercises the\\nagency’s statutory authority to issue certificates.\\n\\n28 RIGGS V. AIRBUS HELICOPTERS\\n\\n Perhaps because the issuance of certificates so obviously\\nconstitutes an exercise of the FAA’s governmental power, the\\nmajority seeks to recast the ODA Program as a “self-\\ncertification” regime. See Maj. Op. at 16–18 (emphasis\\nadded). The majority borrows such reasoning from Lu\\nJunhong v. Boeing Co., where the Seventh Circuit compared\\na manufacturer’s authority to issue certificates to “a person\\nfiling a tax return” compelled to certify that he reported his\\nincome “honestly.” 792 F.3d 805, 809 (7th Cir. 2015). Such\\n“certified compliance,” the court reasoned, was\\nindistinguishable from other forms of “ordinary compliance”\\ndeemed insufficient to satisfy § 1442(a)(1). Id. at 810.\\n\\n Once again, the majority—as Lu Junhong before\\nit—evinces its misunderstanding of the regulatory regime.\\nAlthough an ODA Holder issuing a certificate must ensure\\nthat the aircraft complies with the FAA’s safety standards, the\\norganization’s issuance of the certificate does more; it stamps\\nthe FAA’s imprimatur on the aircraft. In so doing, the ODA\\nHolder exercises a power derived from the agency and\\nindependent from its responsibilities as a manufacturer.\\nIndeed, the FAA authorizes ODA Holders like Airbus to issue\\ncertificates “to an applicant other than the ODA\\nHolder”—thus confirming that such power cannot be reduced\\nto self-certification. ODA Order, ¶ 11–6, at 88 (emphasis\\nadded). And because the nature of the certification authority\\nshould not fluctuate depending on who is granted the\\ncertificate, the mere fact that Airbus certifies its own aircraft\\nhas no bearing on whether it “act[s] under” the FAA.\\n\\n In short, a true self-certification regime (as with the\\ntaxpayer attesting to his income) involves an affirmation that\\nthe regulated party completed his duty; an ODA Holder’s\\n\\n RIGGS V. AIRBUS HELICOPTERS 29\\n\\n“certification” conveys the agency’s formal approval to the\\naircraft.\\n\\n 2\\n\\n The majority’s flawed understanding of the ODA\\nProgram blinds it to the differences between this case and\\nWatson. There, the defendant—Philip Morris—argued that\\nthe FTC had “delegated authority” to test cigarettes for tar\\nand nicotine, and that it “‘act[ed] under’ officers of the FTC”\\nwhen it conducted such testing. Watson, 551 U.S. at 154\\n(emphasis removed). But the Supreme Court “found no\\nevidence of any delegation of legal authority from the FTC to\\nthe industry association”—the “fatal flaw” in Philip Morris’s\\nargument. Id. at 156 (emphasis added). Accordingly, the\\nCourt found no reason to treat “the FTC/Philip Morris\\nrelationship as distinct from the usual regulator/regulated\\nrelationship.” Id. at 157.\\n\\n Eager to fit this case into Watson’s mold, the majority\\ncasts Airbus as a regulated party complying (or self-certifying\\ncompliance) with FAA rules and regulations. See Maj. Op.\\nat 16–18. But as shown, Congress and the FAA said that the\\nFAA delegates “legal authority” to act “on the Government\\nagency’s behalf.” Watson, 551 U.S. at 156. That delegation\\ngoes well beyond the “usual regulator/regulated relationship,”\\nid. at 157, and as a delegee Airbus “assist[s]” and “help[s]\\ncarry out” the duties and tasks of the FAA, id. at 152\\n(emphasis removed). Under the correct reading of Watson,\\n\\n30 RIGGS V. AIRBUS HELICOPTERS\\n\\nsuch a scheme satisfies § 1442(a)(1)’s “acting under”\\nrequirement. Id.3\\n\\n III\\n\\n The federal officer removal statute allows those who labor\\non the federal government’s behalf, and are therefore sued in\\nstate court, to have such case tried in a federal forum. In this\\ncase, the FAA authorized Airbus to issue certificates that the\\nagency would otherwise issue on its own, and such delegation\\nsatisfies § 1442(a)(1)’s “acting under” requirement. Of\\ncourse, it might seem strange that a manufacturer’s\\nparticipation in this private-public partnership would permit\\nit to avoid state court; § 1442’s core purpose, after all, is to\\ngive federal officials “a federal forum in which to assert\\nfederal immunity defenses.” Watson, 551 U.S. at 150\\n(emphasis added). But the statute’s text is broader still, and\\nour court has discerned a “clear command from both\\nCongress and the Supreme Court that when federal officers\\nand their agents are seeking a federal forum, we are to\\ninterpret section 1442 broadly in favor of removal.” Durham\\nv. Lockheed Martin Corp., 445 F.3d 1247, 1252 (9th Cir.\\n\\n\\n 3\\n The Ninth Circuit cases that the majority cites do not support its\\nconclusion. See Maj. Op. at 10–15 (citing Goncalves v. Rady Children’s\\nHosp. San Diego, 865 F.3d 1237 (9th Cir. 2017), and Fidelitad, Inc. v.\\nInsitu, Inc., 904 F.3d 1095 (9th Cir. 2018)). Both cases apply Watson to\\nstatutory regimes quite different from the FAA’s, and each decision’s fact-\\nintensive analysis defies extraction of a simple rule that resolves this case.\\nThe majority’s broad assertion that the court in Fidelitad was “confronted\\nwith the identical issue” that we confront here is simply wrong, Maj. Op.\\nat 14; Fidelitad did not address a situation where an entity had formally\\nand explicitly been delegated authority to issue certificates on behalf of a\\nfederal agency, let alone the specific delegation that Airbus acts under\\nhere.\\n\\n RIGGS V. AIRBUS HELICOPTERS 31\\n\\n2006) (emphasis added). The clear consequence of\\nCongress’s handiwork is that FAA delegees perform the\\nagency’s tasks. Because Airbus is such a delegee,\\n§ 1442(a)(1) entitles it to a federal forum.\\n\\n I respectfully dissent.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4440146/\", \"author_raw\": \"O’SCANNLAIN, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"MARY M SCHROEDER"},"judge2":{"kind":"string","value":"DIARMUID F O'SCANNLAIN"},"judge3":{"kind":"string","value":"JOHNNIE B RAWLINSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4662893/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Mary Riggs v. Airbus Helicopters, Inc.\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-20\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nMARY RIGGS, as Personal No. 18-16396\nRepresentative of the ESTATE OF\nJONATHAN NEIL UDALL, for the D.C. No.\nbenefit of the ESTATE OF JONATHAN 2:18-cv-00912-\nNEIL UDALL, and PHILIP AND JCM-GWF\nMARLENE UDALL as Next of Kin and\nNatural Parents of JONATHAN NEIL\nUDALL, deceased, OPINION\n Plaintiff-Appellee,\n\n v.\n\nAIRBUS HELICOPTERS, INC.,\n Defendant-Appellant,\n\n v.\n\nMATTHEW HECKER; DANIEL\nFRIEDMAN; BRENDA HALVORSON;\nGEOFFREY EDLUND; ELLING B.\nHALVORSON; JOHN BECKER; ELLING\nKENT HALVORSON; LON A.\nHALVORSON; SCOTT BOOTH;\nPAPILLON AIRWAYS, INC., DBA\nPapillon Grand Canyon Helicopters;\nXEBEC LLC,\n Defendants-Appellees.\n\n2 RIGGS V. AIRBUS HELICOPTERS\n\n Appeal from the United States District Court\n for the District of Nevada\n James C. Mahan, District Judge, Presiding\n\n Argued and Submitted February 14, 2019\n San Francisco, California\n\n Filed September 20, 2019\n\n Before: Mary M. Schroeder, Diarmuid F. O’Scannlain,\n and Johnnie B. Rawlinson, Circuit Judges.\n\n Opinion by Judge Rawlinson;\n Dissent by Judge O’Scannlain\n\n\n SUMMARY*\n\n\n Federal Officer Removal Statute\n\n The panel affirmed the district court’s order granting\nmotions to remand to state court a case that had been\nremoved to federal court pursuant to 28 U.S.C. § 1442(a)(1).\n\n Following a fatal helicopter crash, plaintiffs filed suit in\nNevada state court against the owners of the helicopter and\nthe manufacturer, Airbus Helicopters, Inc. Airbus removed\nthe action to federal court on the basis of § 1442(a)(1), which\npermits removal of an action against “any officer (or any\nperson acting under that officer) of the United States or of\n\n *\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\n RIGGS V. AIRBUS HELICOPTERS 3\n\nany agency thereof, in an official or individual capacity, for\nor relating to any act under color of such office.”\n\n Federal Aviation Administration regulations set forth\nstandards for certification of helicopters. Pursuant to\n49 U.S.C. § 44702(d)(1), the FAA delegated to Airbus the\nauthority to issue Supplemental Certificates for design\nchanges to type-certified aircraft.\n\n Agreeing generally with the Seventh Circuit, and applying\nWatson v. Philip Morris Cos., 551 U.S. 142 (2007), the panel\nheld that Airbus failed to meet the “acting under” requirement\nof § 1442(a)(1) because, in issuing Supplemental Certificates\npursuant to its FAA delegation, Airbus was merely\ncomplying with regulatory standards. The panel concluded\nthat an aircraft manufacturer does not act under a federal\nofficer when it exercises designated authority to certify\ncompliance with governing federal regulations.\n\n Dissenting, Judge O’Scannlain wrote that Airbus acted\nunder a federal agency because it undertook duties on the\nFAA’s behalf, and the majority’s contrary holding\nmisunderstood the FAA’s regulatory regime and misapplied\nWatson.\n\n\n COUNSEL\n\nCarter G. Phillips (argued), Sidley Austin LLP, Washington,\nD.C.; Yvette Ostolaza and Robert S. Velevis, Sidley Austin\nLLP, Dallas, Texas; David R. Carpenter, Sidley Austin LLP,\nLos Angeles, California; James J. Pisanelli and Todd L. Bice,\nPisanelli Bice PLLC, Las Vegas, Nevada; for Defendant-\nAppellant.\n\n4 RIGGS V. AIRBUS HELICOPTERS\n\nGary C. Robb (argued) and Anita Porte Robb, Robb & Robb\nLLC, Kansas City, Missouri; Lawrence J. Smith, Bertoldo\nBaker Carter & Smith, Las Vegas, Nevada; for Plaintiffs-\nAppellees.\n\nPatrick J. Kearns (argued), Wilson Elser Moskowitz Edelman\n& Dicker LLP, San Diego, California, for Defendants-\nAppellees.\n\nLauren L. Haertlein, General Aviation Manufacturers\nAssociation, Washington, D.C., for Amicus Curiae General\nAviation Manufacturers Association.\n\n\n OPINION\n\nRAWLINSON, Circuit Judge:\n\n Appellant-Defendant Airbus Helicopters, Inc. (AHI)\nappeals the district court’s order granting motions to remand\nto state court. AHI contended that it properly removed this\ncase to federal district court pursuant to 28 U.S.C.\n§ 1442(a)(1) (§ 1442(a)(1)). According to AHI, the district\ncourt erroneously determined that AHI did not satisfy the\n“acting under” requirement of § 1442(a)(1). Reviewing de\nnovo, we affirm the judgment of the district court.\n\nI. BACKGROUND\n\n In February, 2018, John Udall, a resident of the United\nKingdom, was killed in a helicopter crash while touring the\nGrand Canyon. The helicopter (Crashed Helicopter) was\n\n RIGGS V. AIRBUS HELICOPTERS 5\n\nowned and operated by several of the Hecker Defendants1 and\nmanufactured by AHI.\n\n Plaintiff-Appellee Mary Riggs (Riggs) filed this action in\nNevada state court against AHI and the Hecker Defendants,\nalleging that the Crashed Helicopter was defectively designed\nbecause the fuel tank was not crash-resistant, and could not\nwithstand an impact of a minimal or moderate nature without\nbursting into flames and engulfing the passenger\ncompartment.2\n\n AHI removed the case to federal district court, asserting\n§ 1442(a)(1) as the basis for removal. That provision permits\nremoval to federal court of an action against “any officer (or\nany person acting under that officer) of the United States or\nof any agency thereof, in an official or individual capacity,\nfor or relating to any act under color of such office.”\n28 U.S.C. § 1442(a)(1). Riggs and the Hecker Defendants\nseparately moved to remand the case to Nevada state court,\non the basis that AHI did not meet the requirements of\n§ 1442(a)(1).\n\n\n\n\n 1\n The named Hecker Defendants are: Matthew Hecker, Daniel\nFriedman, Brenda Halvorson, Geoffrey Edlund, Elling B. Halvorson, John\nBecker, Elling Kent Halvorson, Lon A. Halvorson, Scott Booth, and\nPapillon Airways, Inc., DBA Papillon Grand Canyon Helicopters, and\nXebec LLC.\n 2\n In this appeal, the Hecker Defendants are Defendants-Appellees\nwhose interests are aligned with the interests of Riggs.\n\n6 RIGGS V. AIRBUS HELICOPTERS\n\n While the motions to remand were pending before the\ndistrict court, AHI moved to dismiss the lawsuit pursuant to\nFederal Rule of Civil Procedure 12(b)(2) and (b)(6). 3\n\n The district court granted Hecker and Riggs’s motions to\nremand. Noting that we have not directly addressed\n§ 1442(a)(1) removal based on an FAA delegation, the\ndistrict court relied primarily on the Seventh Circuit decision\nof Lu Junhong v. Boeing Co., 792 F.3d 805 (7th Cir. 2015)\naddressing an almost identical situation. After applying the\nreasoning set forth in Lu Junhong, the district court ruled that\nAHI failed to meet the “acting under” requirement of\n§ 1442(a)(1) because AHI’s activities “pursuant to its\n[Federal Aviation Administration] delegation are rule\ncompliance rather than rule making.”\n\nII. STANDARD OF REVIEW\n\n “We review de novo a district court’s decision to remand\na removed case . . .” Corona-Contreras v. Gruel, 857 F.3d\n1025, 1028 (9th Cir. 2017) (citation omitted).\n\nIII. DISCUSSION\n\n Before turning to the issue before us, we first review the\nstatutory framework that sets the stage for our decision.\n\n Congress has charged the Federal Aviation\nAdministration (FAA) with regulating aviation safety in the\nUnited States pursuant to the Federal Aviation Act, 49 U.S.C.\n§ 40101, et seq. See Martin ex rel. Heckman v. Midwest Exp.\n\n 3\n Because we affirm the district court’s order granting the motions to\nremand, AHI’s motion to dismiss is now moot.\n\n RIGGS V. AIRBUS HELICOPTERS 7\n\nHoldings, Inc., 555 F.3d 806, 808 (9th Cir. 2009). Pursuant\nto this authority, the FAA promulgated the Federal Aviation\nRegulations (FARs). See 14 C.F.R. § 1.1 et. seq. Standards\nfor certification of helicopters, such as the Crashed\nHelicopter, are set forth in 14 C.F.R. § 27.1.\n\n After demonstrating compliance with the FARs, an\naircraft owner may obtain a certificate from the FAA\napproving the aircraft’s design. See 49 U.S.C. § 44704(a)(1);\n14 C.F.R. §§ 21.21, et. seq. The FAA requires a\nsupplemental type certificate (Supplemental Certificate) for\nany design changes to a type-certificated aircraft. See\n49 U.S.C. § 44704(b). Therefore, AHI could make no design\nchange to the Crashed Helicopter absent the issuance of a\nSupplemental Certificate.\n\n To help ameliorate the effect of the FAA’s limited\nresources, 49 U.S.C. § 44702(d)(1) provides that the FAA\n“may delegate to a qualified private person . . . a matter\nrelated to–(A) the examination, testing, and inspection\nnecessary to issue a certificate under this chapter; and\n(B) issuing the certificate.” The Eighth Circuit has described\nthis delegation approach as a means of “reducing\ngovernmental costs [and] eas[ing] the burden of regulation on\nthe aviation community by expediting the issuance of\nrequested certifications.” Charlima, Inc. v. United States,\n873 F.2d 1078, 1081 (8th Cir. 1989).\n\n Pursuant to 49 U.S.C. § 44702(d)(1), the FAA instituted\nthe Organization Designation Authorization (Designation)\nprogram to delegate to organizations, such as AHI, the FAA’s\nauthority to inspect aircraft designs and issue certifications.\nSee 14 C.F.R. § 183.41. An FAA Designation “allows an\norganization to perform specified functions on behalf of the\n\n8 RIGGS V. AIRBUS HELICOPTERS\n\nAdministrator related to engineering, manufacturing,\noperations, airworthiness, or maintenance.” 14 C.F.R.\n§ 183.41(a). In 2009, AHI became an FAA-certified\nDesignation holder with authority to issue Supplemental\nCertificates.4\n\n The ongoing dispute in this appeal is whether AHI\nsatisfies the “acting under” prong of § 1442(a)(1). AHI\ncontends that it was formally delegated legal authority from\nthe FAA, and that this delegation establishes that it was\nacting under the federal government for purposes of\n§ 1442(a)(1). As an FAA delegee, AHI asserts that it does\nmore than merely comply with federal law–it assists in\ncarrying out the FAA’s duties. Acknowledging that it does\nnot make or promulgate federal law, AHI argues that the\ndistrict court erroneously relied on the holding from the\nSeventh Circuit requiring entities to demonstrate a\nengagement in rule-making rather than rule compliance to\nsatisfy the “acting under” requirement of § 1442(a)(1).\n\n As a private party, AHI must demonstrate that it was\n“involved in an effort to assist, or to help carry out, the duties\nor tasks of the federal superior” to satisfy the “acting under”\nrequirement of § 1442(a)(1). Fidelitad, Inc v. Insitu, Inc., 904\nF.3d 1095, 1099 (9th Cir. 2018) (citation and internal\nquotation marks omitted). The pivotal question then is\n\n 4\n The dissent references the recent crashes of the Boeing 737 Max to\nsupport the argument that Boeing is authorized to self-certify the safety of\nits fleet. See Dissenting Opinion, p. 24 n.2. However, in the aftermath of\nthe tragic crashes, it became clear that the FAA was calling the shots, not\nBoeing. See Luz Lato, Michael Laris, Lori Aratani and Damian Paletta,\nDemocracy Dies in Darkness, Washington Post (March 13, 2019)\n(reporting that the FAA grounded the 737 Max planes after a\n“recommendation” from Boeing).\n\n RIGGS V. AIRBUS HELICOPTERS 9\n\nwhether AHI was assisting the FAA to carry out the FAA’s\nduties or whether AHI was “simply complying with the law,”\nwhich would not bring it within the scope of § 1442(a)(1).\nId. at 1100.5\n\n In Watson v. Philip Morris Cos., Inc., 551 U.S. 142,\n145–47 (2007), the United States Supreme Court addressed\n§ 1442(a)(1) in the context of a defendant tobacco company’s\ncontentions that its close working relationship with a federal\nagency that directed and monitored its activities constituted\nconduct that satisfied the “acting under” requirement.\nRejecting this argument, the Court held that Philip Morris did\nnot satisfy the “acting under” requirement of § 1442(a)(1).\nId. at 157. In the Court’s view, Philip Morris’s mere\ncompliance with federal regulations did not constitute “a\nstatutory basis for removal.” Id. at 153 (“A private firm’s\ncompliance (or noncompliance) with federal laws, rules, and\nregulations does not by itself fall within the scope of the\nstatutory phrase ‘acting under’ a federal official.”).\nAccording to the Supreme Court, the “acting under”\nrequirement is not satisfied by mere compliance with a\nregulation “even if the regulation is highly detailed and even\nif the private firm’s activities are highly supervised and\nmonitored.”6 Id. The Court in Watson also noted that Philip\n\n\n 5\n The dissent notes that the FAA authorizes certification of others.\nSee Dissenting Opinion, p. 28. However, that circumstance has zero effect\non the legal analysis dictated by Watson.\n 6\n The dissent makes an effort to distinguish the controlling effect of\nWatson by focusing on the delegation by the FAA of authority to issue\ncertificates. See Dissenting Opinion, pp. 29–30. However, as the Seventh\nCircuit cogently observed, several other industries, including the energy\nand health sectors, certify compliance without “acting under” the\nregulating agencies. Lu Junhong, 792 F.3d at 809–10. As the Seventh\n\n10 RIGGS V. AIRBUS HELICOPTERS\n\nMorris had never been delegated legal authority from a\nfederal agency. See id. at 156.\n\n Although we have not directly addressed removal under\n§ 1442(a)(1) based on an FAA designation, we have\naddressed removal under § 1442(a) in other contexts. In\nGoncalves By & Through Goncalves v. Rady Children’s\nHosp. San Diego, 865 F.3d 1237, 1245–47 (9th Cir. 2017),\nwe considered whether the congressionally-authorized\ndelegation of insurance claims administration by the United\nStates Office of Personnel Management (OPM) to private\ninsurers conferred federal officer status upon those private\ninsurers for purposes of § 1442(a)(1). In Goncalves, the\nprivate insurer placed a subrogation lien on the proceeds of a\nsettlement reached on behalf of Goncalves with Rady\nChildren’s Hospital. See id. at 1243. Goncalves filed a\nmotion in state court to expunge the lien, and the private\ninsurer removed the matter to federal court. See id. In\ndetermining whether removal was proper, we addressed the\n“acting under” provision of § 1442(a)(1). We explained that\n“[f]or a private entity to be ‘acting under’ a federal officer,\nthe private entity must be involved in an effort to assist, or to\nhelp carry out, the duties or tasks of the federal superior.” Id.\nat 1245 (citation omitted) (emphases in the original). We\n\n\nCircuit observed: “We doubt that the Justices would see a dispositive\ndifference between certified compliance and ordinary compliance. Indeed,\nWatson rejected an argument . . . that a federal agency hadn’t ‘just’\nrequired compliance with regulations but also had ‘delegated authority’ to\nthe manufacturer to determine compliance with those regulations. The\n[Supreme] Court thought that inadequate to make the manufacturer a\nperson ‘acting under’ the agency.” Id. at 809 (quoting Watson, 551 U.S.\nat 154–57). We agree with the Seventh Circuit that the Supreme Court in\nWatson did not articulate a distinction between “certified” compliance and\ncompliance generally. Watson, 551 U. S. at 151–52.\n\n RIGGS V. AIRBUS HELICOPTERS 11\n\nnoted that the actions taken by the private entity “must go\nbeyond simple compliance with the law and help officers\nfulfill other basic governmental tasks.” Id. (citation and\nalterations omitted).\n\n We ultimately concluded that the private insurer was\n“acting under” a federal officer. Not only did the OPM enter\ninto a contract with the private insurer for a negotiated fee,\nthe contract also authorized the insurer to pursue subrogation\nbenefits that would otherwise be pursued by OPM. See id. at\n1246–47. But for the actions of the private insurers, OPM\nwould not be reimbursed when an employee successfully\npursued a third-party for payment of healthcare expenses\nincurred by the employee. See id. at 1247. OPM delegated\nto the private insurer the authority to pursue subrogation\nclaims on behalf of the government. See id. at 1247. Under\nthese circumstances, we concluded that the private insurer\nwas “acting under” a federal officer. Id. We reasoned that\nthe pursuit of subrogation claims took the private insurer\n“well beyond simple compliance with the law and helped\n[federal] officers fulfill other basic governmental tasks. Id.\n(quoting Watson, 551 U.S. at 153) (alteration and internal\nquotation marks omitted).\n\n We recently grappled with the “acting under” requirement\nof § 1442(a)(1) in Fidelitad, 904 F.3d 1095, and we included\na thoughtful discussion of Watson.7 In Fidelitad, a private\ncompany (Fidelitad) that sold drones in Latin America placed\norders for the drones from a private drone manufacturer\n(Insitu). See id. at 1097–98. The sales in Latin America\n\n\n 7\n Our colleague in dissent contends that the majority opinion\nmisapplies Watson. See Dissenting Opinion, p. 19. However, that\ncontention completely ignores our similar analysis of Watson in Fidelitad.\n\n12 RIGGS V. AIRBUS HELICOPTERS\n\nrequired “export licenses from the federal government.” Id.\nat 1098. The two companies subsequently had a falling out\nover the provisions in the export licenses. See id.\nConsequently, Fidelitad filed an action against Insitu\nasserting, among other claims, that Insitu improperly delayed\nshipment of Fidelitad’s order. See id. at 1097. Insitu moved\nfor removal under § 1442(a)(1), arguing that it was “acting\nunder” the federal government because it delayed orders to\nFidelitad to ensure that Fidelitad complied with federal export\nlaws. See id. at 1098–100.\n\n We held that in order to invoke § 1442(a)(1) removal, a\ndefendant “must demonstrate that (a) it is a person within the\nmeaning of the statute; (b) there is a causal nexus between its\nactions, taken pursuant to a federal officer’s directions, and\nplaintiff’s claims; and (c) it can assert a colorable federal\ndefense.” Id. at 1099 (citations and internal quotation marks\nomitted). We identified the “central issue” in the case as\n“whether Insitu was acting pursuant to a federal officer’s\ndirections” when denying shipment of the drones. Id.\n(internal quotation marks omitted). We described the\n“paradigm” of a private entity “acting under a federal officer”\nas an individual “acting under the direction of a federal law\nenforcement officer,” such as a private citizen assisting in a\nlaw enforcement raid. Id. (citations and internal quotation\nmarks omitted).\n\n We focused on the fact that no federal officer directed\nInsitu to delay the orders. See id. at 1100. Nevertheless,\nInsitu maintained that it was “acting under” a federal officer\nbecause the delay was for the purpose of ensuring compliance\nwith the International Traffic in Arms Regulation, 22 C.F.R.\n§§ 120–130, which governs the sale of military goods to\nforeign governments. See id. Citing Watson and Lu\n\n RIGGS V. AIRBUS HELICOPTERS 13\n\nJunhong, we reiterated that mere compliance with governing\nregulations “does not bring a private actor within the scope of\nthe federal officer removal statute.” Id.\n\n We explained that Watson involved allegations that a\ncigarette company sold cigarettes that delivered more tar and\nnicotine than advertised. See id. The company removed the\ncase on the basis that it was acting under the direction of a\nfederal officer by using a required test protocol that was\n“closely monitored by the federal government.” Id. We\ndescribed the Supreme Court as unpersuaded by the\ncompany’s position, noting its holding that removal was not\nappropriate even though “a federal agency directs, supervises,\nand monitor’s a company’s activities in considerable detail.”\nId. (citation and internal quotation marks omitted).\nAccording to our reading of Watson in Fidelitad, extensive\n“federal regulation alone” did not suffice to meet the “acting\nunder” requirement of § 1442(a)(1). Id. We also observed\nthat the Supreme Court’s rationale in Watson counseled\nrejection of Insitu’s argument regarding its stated attempts to\nnot only comply with federal regulations, but to “also\nattempt[] to enforce specific provisions in Fidelitad’s export\nlicenses.” Id. We recognized the Supreme Court’s rejection\nin Watson of the notion “that a company subject to a\nregulatory order (even a highly complex order) is acting\nunder a federal officer.” Id. (quoting Watson, 551 U.S.\nat 152–53) (parallel citation and internal quotation marks\nomitted).\n\n Finally, in Fidelitad we acknowledged that government\ncontractors may “act under federal officers.” Id. (citation\nomitted). But, we clarified, the government did not contract\nwith Insitu and the regulation and export licenses did not\n“establish the type of formal delegation that might authorize\n\n14 RIGGS V. AIRBUS HELICOPTERS\n\nInsitu to remove the case.” Id. at 1101 (quoting Watson,\n551 U.S. at 156) (alteration omitted).\n\n The dissent seeks to minimize the persuasive power of\nFidelitad by commenting that a different statutory regime\nwas involved. See Dissenting Opinion, p. 30 n.3. However,\nthe dissent’s summary comment elides the fact that we were\nconfronted with the identical issue in Fidelitad that we\nresolve in this case, whether the “acting under” requirement\nof § 1442(a)(1) was satisfied. The dissent also fails to grapple\nwith the reality that in Fidelitad, we cited with approval the\nSeventh Circuit’s Lu Junhong decision. Finally, despite\ncriticizing the precedent cited by the majority, the dissent did\nnot, and cannot, cite one case from this circuit that supports\nits analysis of the “acting under” requirement. The best the\ndissent can muster is a case from the Eleventh Circuit,\nMagnin v. Teledyne Cont’l Motors, 91 F.3d 1424 (11th Cir.\n1996), decided eleven years prior to Watson and an argument\nfrom a Solicitor General that was rejected by the Supreme\nCourt. See Dissenting Opinion, pp. 26–27.\n\n Our analysis in Fidelitad is generally consistent with the\napproach taken by the Seventh Circuit in Lu Junhong, the\ncase relied on by the district court. Lu Junhong involved a\ndispute over the design of a plane that broke apart during\nflight while landing in San Francisco. See 792 F.3d at 807.\nAfter being initially sued in state court, Boeing contended\nthat it was entitled to removal under § 1442(a)(1) because it\nwas “acting under” the authority of the federal government,\nhaving been granted the authority by the FAA “to use FAA-\napproved procedures to conduct analysis and testing required\nfor the issuance of type, production, and airworthiness\ncertifications for aircraft under Federal Aviation\n\n RIGGS V. AIRBUS HELICOPTERS 15\n\nRegulations.” Id. at 807–08. Boeing’s argument in Lu\nJunhong mirrors AHI’s posture in this appeal.\n\n The Seventh Circuit rejected Boeing’s argument. See id.\nat 810. The court reasoned that “we know from [Watson] that\nbeing regulated, even when a federal agency directs,\nsupervises, and monitors a company’s activities in\nconsiderable detail, is not enough to make a private firm a\nperson “acting under” a federal agency.” Id. at 809 (citation\nand internal quotation marks omitted).\n\n In discussing its rejection of Boeing’s argument that it,\nunlike Philip Morris in Watson, possessed formal delegation\nfrom the FAA of the authority to certify compliance, the\nSeventh Circuit explained:\n\n [T]his [authority] is still a power to certify\n compliance, not a power to design the rules\n for airworthiness. The FAA permits Boeing to\n make changes to its gear after finding that the\n equipment as modified meets the FAA’s\n standards; it does not permit Boeing to use\n gear that meets Boeing’s self-adopted criteria.\n\nId. at 810 (emphasis in the original).\n\n The Seventh Circuit interpreted Watson as requiring the\ndelegation of “rule making” authority rather than “rule\ncompliance” certification to meet the “acting under” standard.\nId. The Seventh Circuit suggested that, at a minimum,\nBoeing would have to be delegated “a power to issue\nconclusive certification of compliance.” Id. (emphasis in the\noriginal). Because Boeing’s self-certification was not binding\non either the FAA or a reviewing court, the Seventh Circuit\n\n16 RIGGS V. AIRBUS HELICOPTERS\n\ndetermined that Boeing did not come within the “acting\nunder” provision of § 1442(a)(1). See id.\n\n The district court in this case adopted the Seventh\nCircuit’s “rule making-compliance” distinction in finding that\nAHI was not “acting under” a FAA delegation. Although we\ncited Lu Junhong with approval in Fidelitad, 904 F.3d\nat 1100, we notably did not incorporate the Seventh Circuit’s\nrule-making-rule compliance dichotomy. Rather, we\nreferenced Lu Junhong for the proposition that compliance\nwith the law “does not bring a private actor within the scope\nof the federal officer removal statute” and neither does\ndelegation of authority “to self-certify compliance with the\nrelevant regulations.” Id. (quoting Lu Junhong, 729 F.3d at\n808–10).\n\n We are persuaded by the consistent reasoning of Watson,\nGoncalves, and Fidelitad to conclude that the district court\ncommitted no error in finding that AHI was not “acting\nunder” a federal officer by virtue of becoming an FAA-\ncertified Designation holder with authority to issue\nSupplemental Certificates. AHI concedes that, as a\nDesignation holder, it “must perform all delegated functions\nin accordance with a detailed, FAA-approved procedures\nmanual specific to each [Designation] holder.” (emphasis\nadded). Language such as “in accordance with” and “FAA-\napproved” suggest a relationship based on compliance rather\nthan assistance to federal officers. Cf. Goncalves, 865 F.3d\nat 1245–46 (noting that a private insurer was “acting under”\na federal officer when it entered into a contract with a\ngovernment agency to pursue third-party reimbursements).\nImportantly, one of the regulations circumscribing an FAA\ndelegee’s authority to certify provides that “each applicant\nmust allow the FAA to make any inspection and any flight\n\n RIGGS V. AIRBUS HELICOPTERS 17\n\nand ground test necessary to determine compliance with the\napplicable requirements of this subchapter.”8 14 C.F.R.\n§ 21.33 (emphasis added). This language explicitly denotes\ncompliance and, as discussed, mere compliance with federal\ndirectives does not satisfy the “acting under” requirement of\n§ 1442(a)(1), even if the actions are “highly supervised and\nmonitored.” Watson, 551 U.S. at 153; see also Goncalves,\n865 F.3d at 1245; Fidelitad, 904 F.3d at 1100.\n\n AHI concedes that it cannot make design changes without\napproval from the FAA. At oral argument, AHI even\nacknowledged that the FAA has the authority to rescind any\naction taken by AHI in connection with the certification\nprocess. These facts demonstrate that AHI was duty-bound\nto follow prescriptive rules set forth by the FAA, thus falling\nwithin the “simple compliance with the law” circumstance\nthat does not meet the “acting under” standard. Goncalves,\n865 F.3d at 1247; see also Fidelitad, 904 F.3d at 1100. In\nsum, AHI’s actions as an issuer of Supplemental Certificates\nfit squarely within the precept of mere compliance with\nregulatory standards and outside the “acting under” provision\nof 1442(a)(1). Watson, 551 U.S. at 153.\n\n We foreshadowed the outcome of this case in Fidelitad,\nnoting with approval the determination in Lu Junhong,\n792 F.3d at 808–10, that an “airplane manufacturer was not\nacting under a federal officer . . . although federal law gave\nthe manufacturer authority to self-certify compliance with the\nrelevant regulations.” 904 F.3d at 1100. In keeping with our\nanalysis in Fidelitad, we hold that AHI was not acting under\n\n\n 8\n The dissent completely disregards this language requiring\ncompliance with FAA regulations. See Dissenting Opinion, pp. 29–30\n(denying Airbus’ compliance obligation).\n\n18 RIGGS V. AIRBUS HELICOPTERS\n\na federal officer although federal regulations gave AHI\nauthority to issue Supplemental Certificates in accordance\nwith FAA regulations. See id. Although we agree generally\nwith the holding of Lu Junhong, as we did in Fidelitad, we\ndecline to adopt the rulemaking-rule compliance distinction\narticulated by the Seventh Circuit and relied on by the district\ncourt. See Lu Junhong, 792 F.3d at 810. We are content to\nrely on the more clearly articulated common analyses from\nWatson, Goncalves, and Fidelitad focusing on whether the\nprivate entity is engaged in mere compliance with federal\nregulations. See e.g., Fidelitad, 904 F.3d at 1100.\n\n Finally, AHI relies heavily on the district court decision\nof Estate of Hecker v. Robinson Helicopter Co., 2013 WL\n5674982 (E.D. Wash. 2013). In Hecker, the plaintiff brought\nan action in state court, asserting state law claims for\nwrongful death, negligence, and products liability arising\nfrom a helicopter crash. See id. at *1. There, as here, the\nhelicopter manufacturer removed the case to federal court\nunder § 1442(a)(1), and the plaintiff moved to remand the\ncase for lack of jurisdiction. See id. The district court held\nthat the defendant’s status as a Designation holder satisfied\nthe “acting under” requirement. Id. at *2. However, not only\nis Hecker non-binding, it was decided before our decisions in\nGoncalves and Fidelitad.\n\nIV. CONCLUSION\n\n AHI inspected and certified its aircraft pursuant to FAA\nregulations and federal law and could not make any structural\nor design changes without the consent of the FAA. The\nSupreme Court decision in Watson and our decisions in\nGoncalves and Fidelitad fully support the proposition that\nAHI’s mere compliance with federal regulations did not\n\n RIGGS V. AIRBUS HELICOPTERS 19\n\nsatisfy the “acting under” requirement of § 1442(a)(1). We\njoin the Seventh Circuit in concluding that an aircraft\nmanufacturer does not act under a federal officer when it\nexercises designated authority to certify compliance with\ngoverning federal regulations.9\n\n AFFIRMED.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Mary Riggs v. Airbus Helicopters, Inc.\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-20\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nMARY RIGGS, as Personal No. 18-16396\\nRepresentative of the ESTATE OF\\nJONATHAN NEIL UDALL, for the D.C. No.\\nbenefit of the ESTATE OF JONATHAN 2:18-cv-00912-\\nNEIL UDALL, and PHILIP AND JCM-GWF\\nMARLENE UDALL as Next of Kin and\\nNatural Parents of JONATHAN NEIL\\nUDALL, deceased, OPINION\\n Plaintiff-Appellee,\\n\\n v.\\n\\nAIRBUS HELICOPTERS, INC.,\\n Defendant-Appellant,\\n\\n v.\\n\\nMATTHEW HECKER; DANIEL\\nFRIEDMAN; BRENDA HALVORSON;\\nGEOFFREY EDLUND; ELLING B.\\nHALVORSON; JOHN BECKER; ELLING\\nKENT HALVORSON; LON A.\\nHALVORSON; SCOTT BOOTH;\\nPAPILLON AIRWAYS, INC., DBA\\nPapillon Grand Canyon Helicopters;\\nXEBEC LLC,\\n Defendants-Appellees.\\n\\n2 RIGGS V. AIRBUS HELICOPTERS\\n\\n Appeal from the United States District Court\\n for the District of Nevada\\n James C. Mahan, District Judge, Presiding\\n\\n Argued and Submitted February 14, 2019\\n San Francisco, California\\n\\n Filed September 20, 2019\\n\\n Before: Mary M. Schroeder, Diarmuid F. O’Scannlain,\\n and Johnnie B. Rawlinson, Circuit Judges.\\n\\n Opinion by Judge Rawlinson;\\n Dissent by Judge O’Scannlain\\n\\n\\n SUMMARY*\\n\\n\\n Federal Officer Removal Statute\\n\\n The panel affirmed the district court’s order granting\\nmotions to remand to state court a case that had been\\nremoved to federal court pursuant to 28 U.S.C. § 1442(a)(1).\\n\\n Following a fatal helicopter crash, plaintiffs filed suit in\\nNevada state court against the owners of the helicopter and\\nthe manufacturer, Airbus Helicopters, Inc. Airbus removed\\nthe action to federal court on the basis of § 1442(a)(1), which\\npermits removal of an action against “any officer (or any\\nperson acting under that officer) of the United States or of\\n\\n *\\n This summary constitutes no part of the opinion of the court. It has\\nbeen prepared by court staff for the convenience of the reader.\\n\\n RIGGS V. AIRBUS HELICOPTERS 3\\n\\nany agency thereof, in an official or individual capacity, for\\nor relating to any act under color of such office.”\\n\\n Federal Aviation Administration regulations set forth\\nstandards for certification of helicopters. Pursuant to\\n49 U.S.C. § 44702(d)(1), the FAA delegated to Airbus the\\nauthority to issue Supplemental Certificates for design\\nchanges to type-certified aircraft.\\n\\n Agreeing generally with the Seventh Circuit, and applying\\nWatson v. Philip Morris Cos., 551 U.S. 142 (2007), the panel\\nheld that Airbus failed to meet the “acting under” requirement\\nof § 1442(a)(1) because, in issuing Supplemental Certificates\\npursuant to its FAA delegation, Airbus was merely\\ncomplying with regulatory standards. The panel concluded\\nthat an aircraft manufacturer does not act under a federal\\nofficer when it exercises designated authority to certify\\ncompliance with governing federal regulations.\\n\\n Dissenting, Judge O’Scannlain wrote that Airbus acted\\nunder a federal agency because it undertook duties on the\\nFAA’s behalf, and the majority’s contrary holding\\nmisunderstood the FAA’s regulatory regime and misapplied\\nWatson.\\n\\n\\n COUNSEL\\n\\nCarter G. Phillips (argued), Sidley Austin LLP, Washington,\\nD.C.; Yvette Ostolaza and Robert S. Velevis, Sidley Austin\\nLLP, Dallas, Texas; David R. Carpenter, Sidley Austin LLP,\\nLos Angeles, California; James J. Pisanelli and Todd L. Bice,\\nPisanelli Bice PLLC, Las Vegas, Nevada; for Defendant-\\nAppellant.\\n\\n4 RIGGS V. AIRBUS HELICOPTERS\\n\\nGary C. Robb (argued) and Anita Porte Robb, Robb & Robb\\nLLC, Kansas City, Missouri; Lawrence J. Smith, Bertoldo\\nBaker Carter & Smith, Las Vegas, Nevada; for Plaintiffs-\\nAppellees.\\n\\nPatrick J. Kearns (argued), Wilson Elser Moskowitz Edelman\\n& Dicker LLP, San Diego, California, for Defendants-\\nAppellees.\\n\\nLauren L. Haertlein, General Aviation Manufacturers\\nAssociation, Washington, D.C., for Amicus Curiae General\\nAviation Manufacturers Association.\\n\\n\\n OPINION\\n\\nRAWLINSON, Circuit Judge:\\n\\n Appellant-Defendant Airbus Helicopters, Inc. (AHI)\\nappeals the district court’s order granting motions to remand\\nto state court. AHI contended that it properly removed this\\ncase to federal district court pursuant to 28 U.S.C.\\n§ 1442(a)(1) (§ 1442(a)(1)). According to AHI, the district\\ncourt erroneously determined that AHI did not satisfy the\\n“acting under” requirement of § 1442(a)(1). Reviewing de\\nnovo, we affirm the judgment of the district court.\\n\\nI. BACKGROUND\\n\\n In February, 2018, John Udall, a resident of the United\\nKingdom, was killed in a helicopter crash while touring the\\nGrand Canyon. The helicopter (Crashed Helicopter) was\\n\\n RIGGS V. AIRBUS HELICOPTERS 5\\n\\nowned and operated by several of the Hecker Defendants1 and\\nmanufactured by AHI.\\n\\n Plaintiff-Appellee Mary Riggs (Riggs) filed this action in\\nNevada state court against AHI and the Hecker Defendants,\\nalleging that the Crashed Helicopter was defectively designed\\nbecause the fuel tank was not crash-resistant, and could not\\nwithstand an impact of a minimal or moderate nature without\\nbursting into flames and engulfing the passenger\\ncompartment.2\\n\\n AHI removed the case to federal district court, asserting\\n§ 1442(a)(1) as the basis for removal. That provision permits\\nremoval to federal court of an action against “any officer (or\\nany person acting under that officer) of the United States or\\nof any agency thereof, in an official or individual capacity,\\nfor or relating to any act under color of such office.”\\n28 U.S.C. § 1442(a)(1). Riggs and the Hecker Defendants\\nseparately moved to remand the case to Nevada state court,\\non the basis that AHI did not meet the requirements of\\n§ 1442(a)(1).\\n\\n\\n\\n\\n 1\\n The named Hecker Defendants are: Matthew Hecker, Daniel\\nFriedman, Brenda Halvorson, Geoffrey Edlund, Elling B. Halvorson, John\\nBecker, Elling Kent Halvorson, Lon A. Halvorson, Scott Booth, and\\nPapillon Airways, Inc., DBA Papillon Grand Canyon Helicopters, and\\nXebec LLC.\\n 2\\n In this appeal, the Hecker Defendants are Defendants-Appellees\\nwhose interests are aligned with the interests of Riggs.\\n\\n6 RIGGS V. AIRBUS HELICOPTERS\\n\\n While the motions to remand were pending before the\\ndistrict court, AHI moved to dismiss the lawsuit pursuant to\\nFederal Rule of Civil Procedure 12(b)(2) and (b)(6). 3\\n\\n The district court granted Hecker and Riggs’s motions to\\nremand. Noting that we have not directly addressed\\n§ 1442(a)(1) removal based on an FAA delegation, the\\ndistrict court relied primarily on the Seventh Circuit decision\\nof Lu Junhong v. Boeing Co., 792 F.3d 805 (7th Cir. 2015)\\naddressing an almost identical situation. After applying the\\nreasoning set forth in Lu Junhong, the district court ruled that\\nAHI failed to meet the “acting under” requirement of\\n§ 1442(a)(1) because AHI’s activities “pursuant to its\\n[Federal Aviation Administration] delegation are rule\\ncompliance rather than rule making.”\\n\\nII. STANDARD OF REVIEW\\n\\n “We review de novo a district court’s decision to remand\\na removed case . . .” Corona-Contreras v. Gruel, 857 F.3d\\n1025, 1028 (9th Cir. 2017) (citation omitted).\\n\\nIII. DISCUSSION\\n\\n Before turning to the issue before us, we first review the\\nstatutory framework that sets the stage for our decision.\\n\\n Congress has charged the Federal Aviation\\nAdministration (FAA) with regulating aviation safety in the\\nUnited States pursuant to the Federal Aviation Act, 49 U.S.C.\\n§ 40101, et seq. See Martin ex rel. Heckman v. Midwest Exp.\\n\\n 3\\n Because we affirm the district court’s order granting the motions to\\nremand, AHI’s motion to dismiss is now moot.\\n\\n RIGGS V. AIRBUS HELICOPTERS 7\\n\\nHoldings, Inc., 555 F.3d 806, 808 (9th Cir. 2009). Pursuant\\nto this authority, the FAA promulgated the Federal Aviation\\nRegulations (FARs). See 14 C.F.R. § 1.1 et. seq. Standards\\nfor certification of helicopters, such as the Crashed\\nHelicopter, are set forth in 14 C.F.R. § 27.1.\\n\\n After demonstrating compliance with the FARs, an\\naircraft owner may obtain a certificate from the FAA\\napproving the aircraft’s design. See 49 U.S.C. § 44704(a)(1);\\n14 C.F.R. §§ 21.21, et. seq. The FAA requires a\\nsupplemental type certificate (Supplemental Certificate) for\\nany design changes to a type-certificated aircraft. See\\n49 U.S.C. § 44704(b). Therefore, AHI could make no design\\nchange to the Crashed Helicopter absent the issuance of a\\nSupplemental Certificate.\\n\\n To help ameliorate the effect of the FAA’s limited\\nresources, 49 U.S.C. § 44702(d)(1) provides that the FAA\\n“may delegate to a qualified private person . . . a matter\\nrelated to–(A) the examination, testing, and inspection\\nnecessary to issue a certificate under this chapter; and\\n(B) issuing the certificate.” The Eighth Circuit has described\\nthis delegation approach as a means of “reducing\\ngovernmental costs [and] eas[ing] the burden of regulation on\\nthe aviation community by expediting the issuance of\\nrequested certifications.” Charlima, Inc. v. United States,\\n873 F.2d 1078, 1081 (8th Cir. 1989).\\n\\n Pursuant to 49 U.S.C. § 44702(d)(1), the FAA instituted\\nthe Organization Designation Authorization (Designation)\\nprogram to delegate to organizations, such as AHI, the FAA’s\\nauthority to inspect aircraft designs and issue certifications.\\nSee 14 C.F.R. § 183.41. An FAA Designation “allows an\\norganization to perform specified functions on behalf of the\\n\\n8 RIGGS V. AIRBUS HELICOPTERS\\n\\nAdministrator related to engineering, manufacturing,\\noperations, airworthiness, or maintenance.” 14 C.F.R.\\n§ 183.41(a). In 2009, AHI became an FAA-certified\\nDesignation holder with authority to issue Supplemental\\nCertificates.4\\n\\n The ongoing dispute in this appeal is whether AHI\\nsatisfies the “acting under” prong of § 1442(a)(1). AHI\\ncontends that it was formally delegated legal authority from\\nthe FAA, and that this delegation establishes that it was\\nacting under the federal government for purposes of\\n§ 1442(a)(1). As an FAA delegee, AHI asserts that it does\\nmore than merely comply with federal law–it assists in\\ncarrying out the FAA’s duties. Acknowledging that it does\\nnot make or promulgate federal law, AHI argues that the\\ndistrict court erroneously relied on the holding from the\\nSeventh Circuit requiring entities to demonstrate a\\nengagement in rule-making rather than rule compliance to\\nsatisfy the “acting under” requirement of § 1442(a)(1).\\n\\n As a private party, AHI must demonstrate that it was\\n“involved in an effort to assist, or to help carry out, the duties\\nor tasks of the federal superior” to satisfy the “acting under”\\nrequirement of § 1442(a)(1). Fidelitad, Inc v. Insitu, Inc., 904\\nF.3d 1095, 1099 (9th Cir. 2018) (citation and internal\\nquotation marks omitted). The pivotal question then is\\n\\n 4\\n The dissent references the recent crashes of the Boeing 737 Max to\\nsupport the argument that Boeing is authorized to self-certify the safety of\\nits fleet. See Dissenting Opinion, p. 24 n.2. However, in the aftermath of\\nthe tragic crashes, it became clear that the FAA was calling the shots, not\\nBoeing. See Luz Lato, Michael Laris, Lori Aratani and Damian Paletta,\\nDemocracy Dies in Darkness, Washington Post (March 13, 2019)\\n(reporting that the FAA grounded the 737 Max planes after a\\n“recommendation” from Boeing).\\n\\n RIGGS V. AIRBUS HELICOPTERS 9\\n\\nwhether AHI was assisting the FAA to carry out the FAA’s\\nduties or whether AHI was “simply complying with the law,”\\nwhich would not bring it within the scope of § 1442(a)(1).\\nId. at 1100.5\\n\\n In Watson v. Philip Morris Cos., Inc., 551 U.S. 142,\\n145–47 (2007), the United States Supreme Court addressed\\n§ 1442(a)(1) in the context of a defendant tobacco company’s\\ncontentions that its close working relationship with a federal\\nagency that directed and monitored its activities constituted\\nconduct that satisfied the “acting under” requirement.\\nRejecting this argument, the Court held that Philip Morris did\\nnot satisfy the “acting under” requirement of § 1442(a)(1).\\nId. at 157. In the Court’s view, Philip Morris’s mere\\ncompliance with federal regulations did not constitute “a\\nstatutory basis for removal.” Id. at 153 (“A private firm’s\\ncompliance (or noncompliance) with federal laws, rules, and\\nregulations does not by itself fall within the scope of the\\nstatutory phrase ‘acting under’ a federal official.”).\\nAccording to the Supreme Court, the “acting under”\\nrequirement is not satisfied by mere compliance with a\\nregulation “even if the regulation is highly detailed and even\\nif the private firm’s activities are highly supervised and\\nmonitored.”6 Id. The Court in Watson also noted that Philip\\n\\n\\n 5\\n The dissent notes that the FAA authorizes certification of others.\\nSee Dissenting Opinion, p. 28. However, that circumstance has zero effect\\non the legal analysis dictated by Watson.\\n 6\\n The dissent makes an effort to distinguish the controlling effect of\\nWatson by focusing on the delegation by the FAA of authority to issue\\ncertificates. See Dissenting Opinion, pp. 29–30. However, as the Seventh\\nCircuit cogently observed, several other industries, including the energy\\nand health sectors, certify compliance without “acting under” the\\nregulating agencies. Lu Junhong, 792 F.3d at 809–10. As the Seventh\\n\\n10 RIGGS V. AIRBUS HELICOPTERS\\n\\nMorris had never been delegated legal authority from a\\nfederal agency. See id. at 156.\\n\\n Although we have not directly addressed removal under\\n§ 1442(a)(1) based on an FAA designation, we have\\naddressed removal under § 1442(a) in other contexts. In\\nGoncalves By & Through Goncalves v. Rady Children’s\\nHosp. San Diego, 865 F.3d 1237, 1245–47 (9th Cir. 2017),\\nwe considered whether the congressionally-authorized\\ndelegation of insurance claims administration by the United\\nStates Office of Personnel Management (OPM) to private\\ninsurers conferred federal officer status upon those private\\ninsurers for purposes of § 1442(a)(1). In Goncalves, the\\nprivate insurer placed a subrogation lien on the proceeds of a\\nsettlement reached on behalf of Goncalves with Rady\\nChildren’s Hospital. See id. at 1243. Goncalves filed a\\nmotion in state court to expunge the lien, and the private\\ninsurer removed the matter to federal court. See id. In\\ndetermining whether removal was proper, we addressed the\\n“acting under” provision of § 1442(a)(1). We explained that\\n“[f]or a private entity to be ‘acting under’ a federal officer,\\nthe private entity must be involved in an effort to assist, or to\\nhelp carry out, the duties or tasks of the federal superior.” Id.\\nat 1245 (citation omitted) (emphases in the original). We\\n\\n\\nCircuit observed: “We doubt that the Justices would see a dispositive\\ndifference between certified compliance and ordinary compliance. Indeed,\\nWatson rejected an argument . . . that a federal agency hadn’t ‘just’\\nrequired compliance with regulations but also had ‘delegated authority’ to\\nthe manufacturer to determine compliance with those regulations. The\\n[Supreme] Court thought that inadequate to make the manufacturer a\\nperson ‘acting under’ the agency.” Id. at 809 (quoting Watson, 551 U.S.\\nat 154–57). We agree with the Seventh Circuit that the Supreme Court in\\nWatson did not articulate a distinction between “certified” compliance and\\ncompliance generally. Watson, 551 U. S. at 151–52.\\n\\n RIGGS V. AIRBUS HELICOPTERS 11\\n\\nnoted that the actions taken by the private entity “must go\\nbeyond simple compliance with the law and help officers\\nfulfill other basic governmental tasks.” Id. (citation and\\nalterations omitted).\\n\\n We ultimately concluded that the private insurer was\\n“acting under” a federal officer. Not only did the OPM enter\\ninto a contract with the private insurer for a negotiated fee,\\nthe contract also authorized the insurer to pursue subrogation\\nbenefits that would otherwise be pursued by OPM. See id. at\\n1246–47. But for the actions of the private insurers, OPM\\nwould not be reimbursed when an employee successfully\\npursued a third-party for payment of healthcare expenses\\nincurred by the employee. See id. at 1247. OPM delegated\\nto the private insurer the authority to pursue subrogation\\nclaims on behalf of the government. See id. at 1247. Under\\nthese circumstances, we concluded that the private insurer\\nwas “acting under” a federal officer. Id. We reasoned that\\nthe pursuit of subrogation claims took the private insurer\\n“well beyond simple compliance with the law and helped\\n[federal] officers fulfill other basic governmental tasks. Id.\\n(quoting Watson, 551 U.S. at 153) (alteration and internal\\nquotation marks omitted).\\n\\n We recently grappled with the “acting under” requirement\\nof § 1442(a)(1) in Fidelitad, 904 F.3d 1095, and we included\\na thoughtful discussion of Watson.7 In Fidelitad, a private\\ncompany (Fidelitad) that sold drones in Latin America placed\\norders for the drones from a private drone manufacturer\\n(Insitu). See id. at 1097–98. The sales in Latin America\\n\\n\\n 7\\n Our colleague in dissent contends that the majority opinion\\nmisapplies Watson. See Dissenting Opinion, p. 19. However, that\\ncontention completely ignores our similar analysis of Watson in Fidelitad.\\n\\n12 RIGGS V. AIRBUS HELICOPTERS\\n\\nrequired “export licenses from the federal government.” Id.\\nat 1098. The two companies subsequently had a falling out\\nover the provisions in the export licenses. See id.\\nConsequently, Fidelitad filed an action against Insitu\\nasserting, among other claims, that Insitu improperly delayed\\nshipment of Fidelitad’s order. See id. at 1097. Insitu moved\\nfor removal under § 1442(a)(1), arguing that it was “acting\\nunder” the federal government because it delayed orders to\\nFidelitad to ensure that Fidelitad complied with federal export\\nlaws. See id. at 1098–100.\\n\\n We held that in order to invoke § 1442(a)(1) removal, a\\ndefendant “must demonstrate that (a) it is a person within the\\nmeaning of the statute; (b) there is a causal nexus between its\\nactions, taken pursuant to a federal officer’s directions, and\\nplaintiff’s claims; and (c) it can assert a colorable federal\\ndefense.” Id. at 1099 (citations and internal quotation marks\\nomitted). We identified the “central issue” in the case as\\n“whether Insitu was acting pursuant to a federal officer’s\\ndirections” when denying shipment of the drones. Id.\\n(internal quotation marks omitted). We described the\\n“paradigm” of a private entity “acting under a federal officer”\\nas an individual “acting under the direction of a federal law\\nenforcement officer,” such as a private citizen assisting in a\\nlaw enforcement raid. Id. (citations and internal quotation\\nmarks omitted).\\n\\n We focused on the fact that no federal officer directed\\nInsitu to delay the orders. See id. at 1100. Nevertheless,\\nInsitu maintained that it was “acting under” a federal officer\\nbecause the delay was for the purpose of ensuring compliance\\nwith the International Traffic in Arms Regulation, 22 C.F.R.\\n§§ 120–130, which governs the sale of military goods to\\nforeign governments. See id. Citing Watson and Lu\\n\\n RIGGS V. AIRBUS HELICOPTERS 13\\n\\nJunhong, we reiterated that mere compliance with governing\\nregulations “does not bring a private actor within the scope of\\nthe federal officer removal statute.” Id.\\n\\n We explained that Watson involved allegations that a\\ncigarette company sold cigarettes that delivered more tar and\\nnicotine than advertised. See id. The company removed the\\ncase on the basis that it was acting under the direction of a\\nfederal officer by using a required test protocol that was\\n“closely monitored by the federal government.” Id. We\\ndescribed the Supreme Court as unpersuaded by the\\ncompany’s position, noting its holding that removal was not\\nappropriate even though “a federal agency directs, supervises,\\nand monitor’s a company’s activities in considerable detail.”\\nId. (citation and internal quotation marks omitted).\\nAccording to our reading of Watson in Fidelitad, extensive\\n“federal regulation alone” did not suffice to meet the “acting\\nunder” requirement of § 1442(a)(1). Id. We also observed\\nthat the Supreme Court’s rationale in Watson counseled\\nrejection of Insitu’s argument regarding its stated attempts to\\nnot only comply with federal regulations, but to “also\\nattempt[] to enforce specific provisions in Fidelitad’s export\\nlicenses.” Id. We recognized the Supreme Court’s rejection\\nin Watson of the notion “that a company subject to a\\nregulatory order (even a highly complex order) is acting\\nunder a federal officer.” Id. (quoting Watson, 551 U.S.\\nat 152–53) (parallel citation and internal quotation marks\\nomitted).\\n\\n Finally, in Fidelitad we acknowledged that government\\ncontractors may “act under federal officers.” Id. (citation\\nomitted). But, we clarified, the government did not contract\\nwith Insitu and the regulation and export licenses did not\\n“establish the type of formal delegation that might authorize\\n\\n14 RIGGS V. AIRBUS HELICOPTERS\\n\\nInsitu to remove the case.” Id. at 1101 (quoting Watson,\\n551 U.S. at 156) (alteration omitted).\\n\\n The dissent seeks to minimize the persuasive power of\\nFidelitad by commenting that a different statutory regime\\nwas involved. See Dissenting Opinion, p. 30 n.3. However,\\nthe dissent’s summary comment elides the fact that we were\\nconfronted with the identical issue in Fidelitad that we\\nresolve in this case, whether the “acting under” requirement\\nof § 1442(a)(1) was satisfied. The dissent also fails to grapple\\nwith the reality that in Fidelitad, we cited with approval the\\nSeventh Circuit’s Lu Junhong decision. Finally, despite\\ncriticizing the precedent cited by the majority, the dissent did\\nnot, and cannot, cite one case from this circuit that supports\\nits analysis of the “acting under” requirement. The best the\\ndissent can muster is a case from the Eleventh Circuit,\\nMagnin v. Teledyne Cont’l Motors, 91 F.3d 1424 (11th Cir.\\n1996), decided eleven years prior to Watson and an argument\\nfrom a Solicitor General that was rejected by the Supreme\\nCourt. See Dissenting Opinion, pp. 26–27.\\n\\n Our analysis in Fidelitad is generally consistent with the\\napproach taken by the Seventh Circuit in Lu Junhong, the\\ncase relied on by the district court. Lu Junhong involved a\\ndispute over the design of a plane that broke apart during\\nflight while landing in San Francisco. See 792 F.3d at 807.\\nAfter being initially sued in state court, Boeing contended\\nthat it was entitled to removal under § 1442(a)(1) because it\\nwas “acting under” the authority of the federal government,\\nhaving been granted the authority by the FAA “to use FAA-\\napproved procedures to conduct analysis and testing required\\nfor the issuance of type, production, and airworthiness\\ncertifications for aircraft under Federal Aviation\\n\\n RIGGS V. AIRBUS HELICOPTERS 15\\n\\nRegulations.” Id. at 807–08. Boeing’s argument in Lu\\nJunhong mirrors AHI’s posture in this appeal.\\n\\n The Seventh Circuit rejected Boeing’s argument. See id.\\nat 810. The court reasoned that “we know from [Watson] that\\nbeing regulated, even when a federal agency directs,\\nsupervises, and monitors a company’s activities in\\nconsiderable detail, is not enough to make a private firm a\\nperson “acting under” a federal agency.” Id. at 809 (citation\\nand internal quotation marks omitted).\\n\\n In discussing its rejection of Boeing’s argument that it,\\nunlike Philip Morris in Watson, possessed formal delegation\\nfrom the FAA of the authority to certify compliance, the\\nSeventh Circuit explained:\\n\\n [T]his [authority] is still a power to certify\\n compliance, not a power to design the rules\\n for airworthiness. The FAA permits Boeing to\\n make changes to its gear after finding that the\\n equipment as modified meets the FAA’s\\n standards; it does not permit Boeing to use\\n gear that meets Boeing’s self-adopted criteria.\\n\\nId. at 810 (emphasis in the original).\\n\\n The Seventh Circuit interpreted Watson as requiring the\\ndelegation of “rule making” authority rather than “rule\\ncompliance” certification to meet the “acting under” standard.\\nId. The Seventh Circuit suggested that, at a minimum,\\nBoeing would have to be delegated “a power to issue\\nconclusive certification of compliance.” Id. (emphasis in the\\noriginal). Because Boeing’s self-certification was not binding\\non either the FAA or a reviewing court, the Seventh Circuit\\n\\n16 RIGGS V. AIRBUS HELICOPTERS\\n\\ndetermined that Boeing did not come within the “acting\\nunder” provision of § 1442(a)(1). See id.\\n\\n The district court in this case adopted the Seventh\\nCircuit’s “rule making-compliance” distinction in finding that\\nAHI was not “acting under” a FAA delegation. Although we\\ncited Lu Junhong with approval in Fidelitad, 904 F.3d\\nat 1100, we notably did not incorporate the Seventh Circuit’s\\nrule-making-rule compliance dichotomy. Rather, we\\nreferenced Lu Junhong for the proposition that compliance\\nwith the law “does not bring a private actor within the scope\\nof the federal officer removal statute” and neither does\\ndelegation of authority “to self-certify compliance with the\\nrelevant regulations.” Id. (quoting Lu Junhong, 729 F.3d at\\n808–10).\\n\\n We are persuaded by the consistent reasoning of Watson,\\nGoncalves, and Fidelitad to conclude that the district court\\ncommitted no error in finding that AHI was not “acting\\nunder” a federal officer by virtue of becoming an FAA-\\ncertified Designation holder with authority to issue\\nSupplemental Certificates. AHI concedes that, as a\\nDesignation holder, it “must perform all delegated functions\\nin accordance with a detailed, FAA-approved procedures\\nmanual specific to each [Designation] holder.” (emphasis\\nadded). Language such as “in accordance with” and “FAA-\\napproved” suggest a relationship based on compliance rather\\nthan assistance to federal officers. Cf. Goncalves, 865 F.3d\\nat 1245–46 (noting that a private insurer was “acting under”\\na federal officer when it entered into a contract with a\\ngovernment agency to pursue third-party reimbursements).\\nImportantly, one of the regulations circumscribing an FAA\\ndelegee’s authority to certify provides that “each applicant\\nmust allow the FAA to make any inspection and any flight\\n\\n RIGGS V. AIRBUS HELICOPTERS 17\\n\\nand ground test necessary to determine compliance with the\\napplicable requirements of this subchapter.”8 14 C.F.R.\\n§ 21.33 (emphasis added). This language explicitly denotes\\ncompliance and, as discussed, mere compliance with federal\\ndirectives does not satisfy the “acting under” requirement of\\n§ 1442(a)(1), even if the actions are “highly supervised and\\nmonitored.” Watson, 551 U.S. at 153; see also Goncalves,\\n865 F.3d at 1245; Fidelitad, 904 F.3d at 1100.\\n\\n AHI concedes that it cannot make design changes without\\napproval from the FAA. At oral argument, AHI even\\nacknowledged that the FAA has the authority to rescind any\\naction taken by AHI in connection with the certification\\nprocess. These facts demonstrate that AHI was duty-bound\\nto follow prescriptive rules set forth by the FAA, thus falling\\nwithin the “simple compliance with the law” circumstance\\nthat does not meet the “acting under” standard. Goncalves,\\n865 F.3d at 1247; see also Fidelitad, 904 F.3d at 1100. In\\nsum, AHI’s actions as an issuer of Supplemental Certificates\\nfit squarely within the precept of mere compliance with\\nregulatory standards and outside the “acting under” provision\\nof 1442(a)(1). Watson, 551 U.S. at 153.\\n\\n We foreshadowed the outcome of this case in Fidelitad,\\nnoting with approval the determination in Lu Junhong,\\n792 F.3d at 808–10, that an “airplane manufacturer was not\\nacting under a federal officer . . . although federal law gave\\nthe manufacturer authority to self-certify compliance with the\\nrelevant regulations.” 904 F.3d at 1100. In keeping with our\\nanalysis in Fidelitad, we hold that AHI was not acting under\\n\\n\\n 8\\n The dissent completely disregards this language requiring\\ncompliance with FAA regulations. See Dissenting Opinion, pp. 29–30\\n(denying Airbus’ compliance obligation).\\n\\n18 RIGGS V. AIRBUS HELICOPTERS\\n\\na federal officer although federal regulations gave AHI\\nauthority to issue Supplemental Certificates in accordance\\nwith FAA regulations. See id. Although we agree generally\\nwith the holding of Lu Junhong, as we did in Fidelitad, we\\ndecline to adopt the rulemaking-rule compliance distinction\\narticulated by the Seventh Circuit and relied on by the district\\ncourt. See Lu Junhong, 792 F.3d at 810. We are content to\\nrely on the more clearly articulated common analyses from\\nWatson, Goncalves, and Fidelitad focusing on whether the\\nprivate entity is engaged in mere compliance with federal\\nregulations. See e.g., Fidelitad, 904 F.3d at 1100.\\n\\n Finally, AHI relies heavily on the district court decision\\nof Estate of Hecker v. Robinson Helicopter Co., 2013 WL\\n5674982 (E.D. Wash. 2013). In Hecker, the plaintiff brought\\nan action in state court, asserting state law claims for\\nwrongful death, negligence, and products liability arising\\nfrom a helicopter crash. See id. at *1. There, as here, the\\nhelicopter manufacturer removed the case to federal court\\nunder § 1442(a)(1), and the plaintiff moved to remand the\\ncase for lack of jurisdiction. See id. The district court held\\nthat the defendant’s status as a Designation holder satisfied\\nthe “acting under” requirement. Id. at *2. However, not only\\nis Hecker non-binding, it was decided before our decisions in\\nGoncalves and Fidelitad.\\n\\nIV. CONCLUSION\\n\\n AHI inspected and certified its aircraft pursuant to FAA\\nregulations and federal law and could not make any structural\\nor design changes without the consent of the FAA. The\\nSupreme Court decision in Watson and our decisions in\\nGoncalves and Fidelitad fully support the proposition that\\nAHI’s mere compliance with federal regulations did not\\n\\n RIGGS V. AIRBUS HELICOPTERS 19\\n\\nsatisfy the “acting under” requirement of § 1442(a)(1). We\\njoin the Seventh Circuit in concluding that an aircraft\\nmanufacturer does not act under a federal officer when it\\nexercises designated authority to certify compliance with\\ngoverning federal regulations.9\\n\\n AFFIRMED.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4474,"cells":{"id":{"kind":"number","value":4662894,"string":"4,662,894"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Albert Goodman v. Bert Dohmen"},"decision_date":{"kind":"string","value":"2019-09-20"},"docket_number":{"kind":"string","value":"17-56330"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Johnnie B. Rawlinson and Mary H. Murguia, Circuit Judges, and James Rodney Gilstrap, * District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"Judge for the Eastern District of Texas, sitting by designation\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\n ALBERT GOODMAN, No. 17-56330\\n Plaintiff-Appellee,\\n D.C. No.\\n v. 2:15-cv-00020-FFM\\n\\n BERT DOHMEN, ORDER CERTIFYING A\\n Defendant-Appellant. QUESTION OF LAW\\n PURSUANT TO\\n DELAWARE SUPREME\\n COURT RULE 41\\n\\n Filed September 20, 2019\\n\\n Before: Johnnie B. Rawlinson and Mary H. Murguia,\\nCircuit Judges, and James Rodney Gilstrap, * District Judge.\\n\\n Order\\n\\n\\n\\n\\n *\\n The Honorable James Rodney Gilstrap, United States District\\nJudge for the Eastern District of Texas, sitting by designation.\\n\\f2 GOODMAN V. DOHMEN\\n\\n SUMMARY **\\n\\n\\n Certified Question to the Delaware Supreme Court\\n\\n The panel certified the following question of state law to\\nthe Supreme Court of the State of Delaware:\\n\\n In a Delaware limited partnership, does a\\n general partner’s request to a limited partner\\n for a one-time capital contribution constitute\\n a request for “limited-partner action” such\\n that the general partner has a duty of\\n disclosure, and, if the general partner fails to\\n disclose material information in connection\\n with the request, may the limited partner\\n prevail on a breach-of-fiduciary-duty claim\\n without proving reliance and causation?\\n\\n\\n COUNSEL\\n\\nAndrew B. Holmes and Matthew D. Taylor, Holmes Taylor\\nScott & Jones LLP, Los Angeles, California, for Defendant-\\nAppellant.\\n\\nJeffrey Engerman, Law Offices of Jeffrey C. Engerman PC,\\nLos Alamitos, California, for Plaintiff-Appellee.\\n\\n\\n\\n\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f GOODMAN V. DOHMEN 3\\n\\n ORDER\\n\\n For the reasons explained in the certificate below, we\\nfind that this case involves an important issue of Delaware\\nlaw, which Delaware courts have yet to resolve. Therefore,\\nwe respectfully certify a question of law to the Supreme\\nCourt of the State of Delaware. See Del. Sup. Ct. R. 41.\\n\\n The Clerk of this Court is directed to file in the Supreme\\nCourt of Delaware six certified copies of this certificate and\\nprovide copies of the record if requested. This case is\\nwithdrawn from submission and stayed pending final action\\nby the Supreme Court of Delaware. The Clerk is directed to\\nadministratively close this docket pending further order. The\\nparties shall notify this Court within 14 days of the Supreme\\nCourt of Delaware’s acceptance or rejection of certification,\\nand, if certification is accepted, within 14 days of the\\nissuance of a decision. 1\\n\\n CERTIFICATE OF QUESTION OF LAW\\n\\n(1) The nature and stage of the proceedings are:\\n\\n This is a Delaware limited partnership breach-of-\\nfiduciary-duty case. Albert Goodman, plaintiff-appellee,\\nsued Bert Dohmen, defendant-appellant, alleging a breach of\\nthe duty of disclosure in connection with a request for\\nlimited-partner action. The district court held a bench trial,\\nfound Dohmen liable, and awarded Goodman monetary\\ndamages. Dohmen appealed, arguing, inter alia, that his duty\\nof disclosure was not triggered because there was no request\\n 1\\n In a memorandum disposition filed concurrently herewith, we\\nreject each of Dohmen’s arguments that are not related to the certified\\nissue.\\n\\f4 GOODMAN V. DOHMEN\\n\\nfor limited-partner action within the meaning of Delaware\\nlaw. The appeal was argued and submitted on April 11,\\n2019, in Pasadena, California.\\n\\n(2) The following facts are undisputed: 2\\n\\n Bert Dohmen is well known in the financial-services\\nindustry for his newsletters, which analyze financial markets\\nand world economies. Dohmen had never created or\\nmanaged a hedge fund until the events that gave rise to this\\ncase. Albert Goodman is a wealthy investor who knew of\\nDohmen because of his newsletters. The two met and\\nbecame friends in 1999. Goodman had never invested in a\\nhedge fund until the events that gave rise to this case.\\n\\n In 2010, Dohmen decided to start a hedge fund. He\\nformed the Croesus Fund, L.P. (the “Fund”) as a Delaware\\nlimited partnership. Dohmen also formed Macro Wave\\nManagement, LLC to serve as the Fund’s general partner.\\nMacro Wave had exclusive control and management of the\\nFund, and Dohmen, in turn, was the sole member and\\nmanager of Macro Wave. Under the Fund’s limited\\npartnership agreement, investors in the Fund became limited\\npartners.\\n\\n In September 2011, Dohmen emailed Goodman, asking\\nGoodman to invest in the Fund. Goodman agreed and signed\\na Fund subscription agreement shortly thereafter. On\\nNovember 14, 2011, Goodman made his first $500,000\\ninvestment in the Fund (the “First Investment”). By the date\\nof the First Investment, Dohmen had not made any concrete\\n 2\\n We accept the district court’s factual findings following a bench\\ntrial absent clear error. See United States v. Temkin, 797 F.3d 682, 688\\n(9th Cir. 2015). The district court made these relevant factual findings,\\nwhich we accept and treat as undisputed.\\n\\f GOODMAN V. DOHMEN 5\\n\\nrepresentations regarding whether other investors had joined\\nthe Fund. In fact, Dohmen had disclosed that he had only\\nspoken with two people about the Fund at that point. In\\nNovember 2011, Dohmen invested $200,000 of his own\\nmoney in the Fund.\\n\\n After Goodman made the First Investment, Goodman\\nspecifically inquired about other investors. On November\\n20, 2011, Dohmen made the following statements in an\\nemail: “We have not yet officially announced the start of the\\nfund. You are one of the few who knows it exists. There are\\nseveral other close friends I told about the fund that are now\\nliquidating some assets in order to participate.” Goodman\\nunderstood the italicized statement to mean that more\\ninvestors were coming in, which was important to Goodman.\\nBut, in fact, no friends of Dohmen’s were liquidating assets\\nto invest in the Fund, and Dohmen was well aware of this.\\n\\n On November 26, 2011, Goodman again inquired as to\\n“how big [the Fund] will be.” Dohmen replied:\\n\\n Re the question of ‘how big it will be,’ I can\\n only say that it will probably not be very big,\\n depending on how it is defined. . . . Until we\\n get a good track record, I only want investors\\n I know, or who have been referred by friends,\\n and that I have spoken to. They will all be\\n ‘accredited investors.’ My first goal is to get\\n to 20–30 million. If the fund does well,\\n perhaps we can get to 100 mio by end of\\n 2012. Those are my parameters right now,\\n which of course can always change\\n depending on conditions. We haven’t even\\n announced the fund yet, officially. Only a\\n few of my good friends know about it.\\n\\f6 GOODMAN V. DOHMEN\\n\\n Goodman wired another $500,000 on December 9, 2011\\n(the “Second Investment”), but Goodman continued to ask\\nabout other investors. On December 13, Dohmen stated that\\n“[p]ersonal friends that have expressed interest are now\\nreviewing the documents.” This was knowingly false. The\\nSecond Investment was invested in the Fund on December\\n14, 2011. Dohmen contacted five people other than\\nGoodman regarding the Fund, but none committed to\\ninvesting.\\n\\n On May 14, 2012, Dohmen informed Goodman for the\\nfirst time that there were only two investors in the Fund.\\nGoodman was shocked, and Dohmen offered to allow\\nGoodman to withdraw his investments. Goodman did not\\nwithdraw.\\n\\n As of June 30, 2012—when Goodman could have\\nwithdrawn—the net asset value (“NAV”) of the Fund was\\n$804,021.26. By November 5, 2012, the NAV was down to\\nabout $500,000, and at the end of December 2012, the NAV\\nwas about $357,000. In July 2014, the NAV was down to\\n$100,000. Any remaining NAV has been used by Dohmen\\nto pay for this litigation. Goodman has not received any\\nportion of his investment back. 3\\n\\n In January 2015, Goodman brought suit alleging, inter\\nalia, that Dohmen breached his fiduciary duty of disclosure\\nby failing to disclose that there were only two investors in\\nthe Fund and affirmatively misleading Goodman on this\\npoint. The district court held a bench trial and found for\\nGoodman on the fiduciary-duty claim, reasoning that\\nDohmen’s November 20, 2011, email contained a material\\n\\n 3\\n Goodman also paid about $30,000 in Fund administrative fees and\\ncosts, startup costs, and various other expenses.\\n\\f GOODMAN V. DOHMEN 7\\n\\nmisrepresentation made in connection with Dohmen’s\\nrequest for Goodman to take discretionary limited-partner\\naction. Because the misrepresentation related to a request for\\nlimited-partner action, the district court found that the\\nrelaxed standard from Malone v. Brincat, 722 A.2d 5, 12\\n(Del. 1998), applied, and Goodman did not have to prove\\nreliance or causation.\\n\\n In calculating Goodman’s damages, the district court\\nawarded the lost value of the Second Investment only—\\nbecause Goodman made the First Investment before\\nDohmen’s misrepresentation. The damages award did not\\ninclude losses incurred after June 30, 2012, the date on\\nwhich Goodman could have mitigated his damages by\\nwithdrawing his investments. Dohmen appealed, arguing\\nthat his duty of disclosure was not triggered, and Goodman\\nwas required to prove causation, because there was no\\nrequest for limited-partner action.\\n\\n(3) The question of law set forth below should be\\ncertified to the Supreme Court of the State of Delaware\\nfor the following reasons:\\n\\n “A claim for breach of fiduciary duty requires proof of\\ntwo elements: (1) that a fiduciary duty existed and (2) that\\nthe defendant breached that duty.” Beard Research, Inc. v.\\nKates, 8 A.3d 573, 601 (Del. Ch.), aff’d sub nom. ASDI, Inc.\\nv. Beard Research, Inc., 11 A.3d 749 (Del. 2010). The\\ndistrict court found that Dohmen, as the sole member of\\nMacro Wave and the exclusive controller of the Fund, owed\\nfiduciary duties to Goodman, as the Fund’s limited partner.\\nDohmen does not challenge this finding on appeal.\\n\\n A general partner’s duty of loyalty generally “parallels\\nthat of a corporation’s director.” Davenport Grp. MG, L.P.\\nv. Strategic Inv. Partners, Inc., 685 A.2d 715, 722 (Del. Ch.\\n\\f8 GOODMAN V. DOHMEN\\n\\n1996). In the corporate context, a director has a “duty of\\ndisclosure,” which arises from the duties of care and loyalty.\\nPfeffer v. Redstone, 965 A.2d 676, 684 (Del. 2009) (“The\\nduty of disclosure is not an independent duty, but derives\\nfrom the duties of care and loyalty.”); see also Lonergan v.\\nEPE Holdings, LLC, 5 A.3d 1008, 1023 (Del. Ch. 2010)\\n(finding that general partners owe the same “duty of full\\ndisclosure” in the limited-partnership context). The duty of\\ndisclosure requires a general partner to “disclose fully and\\nfairly all material information within the [general partner’s]\\ncontrol when [he] seeks [limited-partner] action.” Arnold v.\\nSoc’y for Sav. Bancorp, Inc., 650 A.2d 1270, 1277 (Del.\\n1994) (citation omitted). General partners breach their duty\\nof disclosure by making materially false statements,\\nomitting material facts, or making partial disclosures that are\\nmaterially misleading. Pfeffer, 965 A.2d at 684. 4\\n\\n Delaware law distinguishes between disclosures made\\n“in connection with a request for [limited-partner] action”\\nand disclosures made outside of this context. Malone,\\n722 A.2d at 12. When a general partner makes a misleading\\nstatement or omission in connection with a request for\\nlimited-partner action, the plaintiff need not prove reliance,\\ncausation, or actual damages. Id. Instead, the plaintiff simply\\nmust prove that the alleged omission or misrepresentation\\nwas “material” to the action being sought. Id.\\n\\n Here, the district court found that Dohmen’s misleading\\nNovember 20, 2011, statement was made in connection with\\na request for limited-partner action. Specifically, Dohmen\\n\\n 4\\n Although many of the cases cited herein reference “shareholder\\naction” or “stockholder action,” we use those terms interchangeably with\\n“limited-partner action” because corporate directors and general partners\\nowe the same duty of disclosure.\\n\\f GOODMAN V. DOHMEN 9\\n\\nwas requesting that Goodman invest additional capital.\\nTherefore, the district court found that Malone’s relaxed\\n“materiality” standard applied, and Goodman did not have\\nto prove causation. This conclusion was essential to\\nGoodman’s success. The district court found that Goodman\\ncould not prove causation, if required, because Goodman\\ncould not show “that the lost investment value was\\nproximately caused by there being only two investors in the\\nFund”—i.e., loss causation. See Vichi v. Koninklijke Philips\\nElecs., N.V., 85 A.3d 725, 816 (Del. Ch. 2014). Rather,\\nGoodman lost his investment because of market forces and\\nDohmen’s trading decisions. Therefore, the dispositive issue\\nin this appeal is whether the district court correctly held that\\nDohmen’s misrepresentation was made in connection with a\\nrequest for limited-partner action such that Malone applies.\\n\\n We review the district court’s legal conclusions de novo.\\nTemkin, 797 F.3d at 688. Looking to Delaware law, as we\\nmust, there is no clear indication as to whether the request in\\nthis case—a general partner’s request to a limited partner for\\nadditional capital—constitutes a request for limited-partner\\naction that triggers the duty of disclosure. Most cases suggest\\nthat limited-partner action is narrowly defined as actions that\\nDelaware law or the partnership organizational documents\\nidentify as requiring a discretionary limited-partner vote. See\\nMetro Commc’n Corp. BVI v. Advanced Mobilecomm Techs.\\nInc., 854 A.2d 121, 156 (Del. Ch. 2004) (defining requests\\nfor shareholder action narrowly as communications asking\\nshareholders “to make a discretionary decision—such as\\nwhether to grant a proxy, to vote yes or no on a particular\\nmatter, or to seek appraisal or accept merger consideration”);\\nJackson Nat. Life Ins. Co. v. Kennedy, 741 A.2d 377, 388\\n(Del. Ch. 1999) (“Since neither the Delaware General\\nCorporation Law nor Section II.B of the Certificate\\nexpressly provided [the stockholder] with the right to vote\\n\\f10 GOODMAN V. DOHMEN\\n\\non [the corporation’s] sale of assets to Fort James, [the\\ndirector of the corporation] had no fiduciary obligation to\\ndisclose that transaction to [the stockholder].”). However, at\\nleast one case has interpreted limited-partner action more\\nbroadly. See Alessi v. Beracha, 849 A.2d 939, 944 (Del. Ch.\\n2004) (holding that there was a request for shareholder\\naction where the corporation announced a program allowing\\nminority shareholders to buy or sell shares for a reduced\\nprocessing fee).\\n\\n Moreover, we note that none of the above-cited cases\\nactually addresses the partnership context. And while\\ncorporate directors and general partners have parallel duties\\nof disclosure, they are not perfectly analogous. The types of\\ndiscretionary actions regularly taken by shareholders may be\\ndistinct from those taken by limited partners. And there may\\nbe policy reasons for interpreting limited-partner action\\nmore broadly or narrowly than shareholder action.\\n\\n These are purely state-law issues, which have not been\\naddressed by Delaware courts. The issues are of statewide\\nimportance because allowing Goodman’s claim to prevail\\nunder Malone’s relaxed “materiality” standard might\\n“threaten to convert the duty to disclose all material facts in\\nconnection with a discretionary vote or tender into a\\npervasive, across-the-board rule governing all entity\\ndisclosures, because entity owners can usually connect any\\ndisclosure to a decision they might make[.]” Metro\\nCommc’n Corp., 854 A.2d at 158; see also In re Wayport,\\nInc. Litig., 76 A.3d 296, 314–15 (Del. Ch. 2013) (suggesting\\nthat plaintiffs may be required to prove proximate causation\\neven when there is a request for shareholder action); In re\\nOrchard Enterprises, Inc. Stockholder Litig., 88 A.3d 1, 53\\n(Del. Ch. 2014) (same).\\n\\f GOODMAN V. DOHMEN 11\\n\\n(4) The important and urgent reasons for an immediate\\ndetermination by the Supreme Court of the question\\ncertified are:\\n\\n As noted above, there are important and urgent reasons\\nfor an immediate determination by the Supreme Court of\\nDelaware. The issue of what constitutes limited-partner\\naction for purposes of the duty of disclosure is a purely state-\\nlaw issue that implicates important Delaware policy\\nconsiderations. The issue has not been addressed by\\nDelaware courts, but it will be determinative in this case, and\\nit is likely to recur in federal courts. A ruling from the\\nSupreme Court of Delaware on the certified issue would\\nensure accurate application of Delaware law in other\\njurisdictions.\\n\\n(5) If certification is accepted, it is recommended that\\ndefendant-appellant Bert Dohmen be appellant for\\npurposes of the caption on any filings in the Supreme\\nCourt of Delaware and that plaintiff-appellee Albert\\nGoodman be appellee for purposes of the caption on any\\nfilings in the Supreme Court of Delaware with respect to\\nthe question certified. Pursuant to Delaware Supreme\\nCourt Rule 41(c)(v), we recommend that defendant-\\nappellant file his brief first, followed by plaintiff-appellee.\\n\\n NOW, THEREFORE, IT IS ORDERED that the\\nfollowing question of law is certified to the Supreme Court\\nof the State of Delaware for disposition in accordance with\\nRule 41 of the Supreme Court:\\n\\n In a Delaware limited partnership, does a\\n general partner’s request to a limited partner\\n for a one-time capital contribution constitute\\n a request for “limited-partner action” such\\n that the general partner has a duty of full\\n\\f12 GOODMAN V. DOHMEN\\n\\n disclosure, and, if the general partner fails to\\n disclose material information in connection\\n with the request, may the limited partner\\n prevail on a breach-of-fiduciary-duty claim\\n without proving reliance and causation?\\n\\n We respectfully request that the Supreme Court of\\nDelaware resolve this state-law question of first impression,\\nwhich will resolve the determinative issue in this case. Our\\nphrasing of the question should not be construed to restrict\\nthe Supreme Court of Delaware’s consideration of the issues\\ninvolved in this case.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4440147/\", \"author_raw\": \"Judge for the Eastern District of Texas, sitting by designation\"}]}"},"judge1":{"kind":"string","value":"JOHNNIE B RAWLINSON"},"judge2":{"kind":"string","value":"MARY H MURGUIA"},"judge3":{"kind":"string","value":"JAMES RODNEY GILSTRAP"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4662894/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Albert Goodman v. Bert Dohmen\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-20\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n ALBERT GOODMAN, No. 17-56330\n Plaintiff-Appellee,\n D.C. No.\n v. 2:15-cv-00020-FFM\n\n BERT DOHMEN, ORDER CERTIFYING A\n Defendant-Appellant. QUESTION OF LAW\n PURSUANT TO\n DELAWARE SUPREME\n COURT RULE 41\n\n Filed September 20, 2019\n\n Before: Johnnie B. Rawlinson and Mary H. Murguia,\nCircuit Judges, and James Rodney Gilstrap, * District Judge.\n\n Order\n\n\n\n\n *\n The Honorable James Rodney Gilstrap, United States District\nJudge for the Eastern District of Texas, sitting by designation.\n\f2 GOODMAN V. DOHMEN\n\n SUMMARY **\n\n\n Certified Question to the Delaware Supreme Court\n\n The panel certified the following question of state law to\nthe Supreme Court of the State of Delaware:\n\n In a Delaware limited partnership, does a\n general partner’s request to a limited partner\n for a one-time capital contribution constitute\n a request for “limited-partner action” such\n that the general partner has a duty of\n disclosure, and, if the general partner fails to\n disclose material information in connection\n with the request, may the limited partner\n prevail on a breach-of-fiduciary-duty claim\n without proving reliance and causation?\n\n\n COUNSEL\n\nAndrew B. Holmes and Matthew D. Taylor, Holmes Taylor\nScott & Jones LLP, Los Angeles, California, for Defendant-\nAppellant.\n\nJeffrey Engerman, Law Offices of Jeffrey C. Engerman PC,\nLos Alamitos, California, for Plaintiff-Appellee.\n\n\n\n\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f GOODMAN V. DOHMEN 3\n\n ORDER\n\n For the reasons explained in the certificate below, we\nfind that this case involves an important issue of Delaware\nlaw, which Delaware courts have yet to resolve. Therefore,\nwe respectfully certify a question of law to the Supreme\nCourt of the State of Delaware. See Del. Sup. Ct. R. 41.\n\n The Clerk of this Court is directed to file in the Supreme\nCourt of Delaware six certified copies of this certificate and\nprovide copies of the record if requested. This case is\nwithdrawn from submission and stayed pending final action\nby the Supreme Court of Delaware. The Clerk is directed to\nadministratively close this docket pending further order. The\nparties shall notify this Court within 14 days of the Supreme\nCourt of Delaware’s acceptance or rejection of certification,\nand, if certification is accepted, within 14 days of the\nissuance of a decision. 1\n\n CERTIFICATE OF QUESTION OF LAW\n\n(1) The nature and stage of the proceedings are:\n\n This is a Delaware limited partnership breach-of-\nfiduciary-duty case. Albert Goodman, plaintiff-appellee,\nsued Bert Dohmen, defendant-appellant, alleging a breach of\nthe duty of disclosure in connection with a request for\nlimited-partner action. The district court held a bench trial,\nfound Dohmen liable, and awarded Goodman monetary\ndamages. Dohmen appealed, arguing, inter alia, that his duty\nof disclosure was not triggered because there was no request\n 1\n In a memorandum disposition filed concurrently herewith, we\nreject each of Dohmen’s arguments that are not related to the certified\nissue.\n\f4 GOODMAN V. DOHMEN\n\nfor limited-partner action within the meaning of Delaware\nlaw. The appeal was argued and submitted on April 11,\n2019, in Pasadena, California.\n\n(2) The following facts are undisputed: 2\n\n Bert Dohmen is well known in the financial-services\nindustry for his newsletters, which analyze financial markets\nand world economies. Dohmen had never created or\nmanaged a hedge fund until the events that gave rise to this\ncase. Albert Goodman is a wealthy investor who knew of\nDohmen because of his newsletters. The two met and\nbecame friends in 1999. Goodman had never invested in a\nhedge fund until the events that gave rise to this case.\n\n In 2010, Dohmen decided to start a hedge fund. He\nformed the Croesus Fund, L.P. (the “Fund”) as a Delaware\nlimited partnership. Dohmen also formed Macro Wave\nManagement, LLC to serve as the Fund’s general partner.\nMacro Wave had exclusive control and management of the\nFund, and Dohmen, in turn, was the sole member and\nmanager of Macro Wave. Under the Fund’s limited\npartnership agreement, investors in the Fund became limited\npartners.\n\n In September 2011, Dohmen emailed Goodman, asking\nGoodman to invest in the Fund. Goodman agreed and signed\na Fund subscription agreement shortly thereafter. On\nNovember 14, 2011, Goodman made his first $500,000\ninvestment in the Fund (the “First Investment”). By the date\nof the First Investment, Dohmen had not made any concrete\n 2\n We accept the district court’s factual findings following a bench\ntrial absent clear error. See United States v. Temkin, 797 F.3d 682, 688\n(9th Cir. 2015). The district court made these relevant factual findings,\nwhich we accept and treat as undisputed.\n\f GOODMAN V. DOHMEN 5\n\nrepresentations regarding whether other investors had joined\nthe Fund. In fact, Dohmen had disclosed that he had only\nspoken with two people about the Fund at that point. In\nNovember 2011, Dohmen invested $200,000 of his own\nmoney in the Fund.\n\n After Goodman made the First Investment, Goodman\nspecifically inquired about other investors. On November\n20, 2011, Dohmen made the following statements in an\nemail: “We have not yet officially announced the start of the\nfund. You are one of the few who knows it exists. There are\nseveral other close friends I told about the fund that are now\nliquidating some assets in order to participate.” Goodman\nunderstood the italicized statement to mean that more\ninvestors were coming in, which was important to Goodman.\nBut, in fact, no friends of Dohmen’s were liquidating assets\nto invest in the Fund, and Dohmen was well aware of this.\n\n On November 26, 2011, Goodman again inquired as to\n“how big [the Fund] will be.” Dohmen replied:\n\n Re the question of ‘how big it will be,’ I can\n only say that it will probably not be very big,\n depending on how it is defined. . . . Until we\n get a good track record, I only want investors\n I know, or who have been referred by friends,\n and that I have spoken to. They will all be\n ‘accredited investors.’ My first goal is to get\n to 20–30 million. If the fund does well,\n perhaps we can get to 100 mio by end of\n 2012. Those are my parameters right now,\n which of course can always change\n depending on conditions. We haven’t even\n announced the fund yet, officially. Only a\n few of my good friends know about it.\n\f6 GOODMAN V. DOHMEN\n\n Goodman wired another $500,000 on December 9, 2011\n(the “Second Investment”), but Goodman continued to ask\nabout other investors. On December 13, Dohmen stated that\n“[p]ersonal friends that have expressed interest are now\nreviewing the documents.” This was knowingly false. The\nSecond Investment was invested in the Fund on December\n14, 2011. Dohmen contacted five people other than\nGoodman regarding the Fund, but none committed to\ninvesting.\n\n On May 14, 2012, Dohmen informed Goodman for the\nfirst time that there were only two investors in the Fund.\nGoodman was shocked, and Dohmen offered to allow\nGoodman to withdraw his investments. Goodman did not\nwithdraw.\n\n As of June 30, 2012—when Goodman could have\nwithdrawn—the net asset value (“NAV”) of the Fund was\n$804,021.26. By November 5, 2012, the NAV was down to\nabout $500,000, and at the end of December 2012, the NAV\nwas about $357,000. In July 2014, the NAV was down to\n$100,000. Any remaining NAV has been used by Dohmen\nto pay for this litigation. Goodman has not received any\nportion of his investment back. 3\n\n In January 2015, Goodman brought suit alleging, inter\nalia, that Dohmen breached his fiduciary duty of disclosure\nby failing to disclose that there were only two investors in\nthe Fund and affirmatively misleading Goodman on this\npoint. The district court held a bench trial and found for\nGoodman on the fiduciary-duty claim, reasoning that\nDohmen’s November 20, 2011, email contained a material\n\n 3\n Goodman also paid about $30,000 in Fund administrative fees and\ncosts, startup costs, and various other expenses.\n\f GOODMAN V. DOHMEN 7\n\nmisrepresentation made in connection with Dohmen’s\nrequest for Goodman to take discretionary limited-partner\naction. Because the misrepresentation related to a request for\nlimited-partner action, the district court found that the\nrelaxed standard from Malone v. Brincat, 722 A.2d 5, 12\n(Del. 1998), applied, and Goodman did not have to prove\nreliance or causation.\n\n In calculating Goodman’s damages, the district court\nawarded the lost value of the Second Investment only—\nbecause Goodman made the First Investment before\nDohmen’s misrepresentation. The damages award did not\ninclude losses incurred after June 30, 2012, the date on\nwhich Goodman could have mitigated his damages by\nwithdrawing his investments. Dohmen appealed, arguing\nthat his duty of disclosure was not triggered, and Goodman\nwas required to prove causation, because there was no\nrequest for limited-partner action.\n\n(3) The question of law set forth below should be\ncertified to the Supreme Court of the State of Delaware\nfor the following reasons:\n\n “A claim for breach of fiduciary duty requires proof of\ntwo elements: (1) that a fiduciary duty existed and (2) that\nthe defendant breached that duty.” Beard Research, Inc. v.\nKates, 8 A.3d 573, 601 (Del. Ch.), aff’d sub nom. ASDI, Inc.\nv. Beard Research, Inc., 11 A.3d 749 (Del. 2010). The\ndistrict court found that Dohmen, as the sole member of\nMacro Wave and the exclusive controller of the Fund, owed\nfiduciary duties to Goodman, as the Fund’s limited partner.\nDohmen does not challenge this finding on appeal.\n\n A general partner’s duty of loyalty generally “parallels\nthat of a corporation’s director.” Davenport Grp. MG, L.P.\nv. Strategic Inv. Partners, Inc., 685 A.2d 715, 722 (Del. Ch.\n\f8 GOODMAN V. DOHMEN\n\n1996). In the corporate context, a director has a “duty of\ndisclosure,” which arises from the duties of care and loyalty.\nPfeffer v. Redstone, 965 A.2d 676, 684 (Del. 2009) (“The\nduty of disclosure is not an independent duty, but derives\nfrom the duties of care and loyalty.”); see also Lonergan v.\nEPE Holdings, LLC, 5 A.3d 1008, 1023 (Del. Ch. 2010)\n(finding that general partners owe the same “duty of full\ndisclosure” in the limited-partnership context). The duty of\ndisclosure requires a general partner to “disclose fully and\nfairly all material information within the [general partner’s]\ncontrol when [he] seeks [limited-partner] action.” Arnold v.\nSoc’y for Sav. Bancorp, Inc., 650 A.2d 1270, 1277 (Del.\n1994) (citation omitted). General partners breach their duty\nof disclosure by making materially false statements,\nomitting material facts, or making partial disclosures that are\nmaterially misleading. Pfeffer, 965 A.2d at 684. 4\n\n Delaware law distinguishes between disclosures made\n“in connection with a request for [limited-partner] action”\nand disclosures made outside of this context. Malone,\n722 A.2d at 12. When a general partner makes a misleading\nstatement or omission in connection with a request for\nlimited-partner action, the plaintiff need not prove reliance,\ncausation, or actual damages. Id. Instead, the plaintiff simply\nmust prove that the alleged omission or misrepresentation\nwas “material” to the action being sought. Id.\n\n Here, the district court found that Dohmen’s misleading\nNovember 20, 2011, statement was made in connection with\na request for limited-partner action. Specifically, Dohmen\n\n 4\n Although many of the cases cited herein reference “shareholder\naction” or “stockholder action,” we use those terms interchangeably with\n“limited-partner action” because corporate directors and general partners\nowe the same duty of disclosure.\n\f GOODMAN V. DOHMEN 9\n\nwas requesting that Goodman invest additional capital.\nTherefore, the district court found that Malone’s relaxed\n“materiality” standard applied, and Goodman did not have\nto prove causation. This conclusion was essential to\nGoodman’s success. The district court found that Goodman\ncould not prove causation, if required, because Goodman\ncould not show “that the lost investment value was\nproximately caused by there being only two investors in the\nFund”—i.e., loss causation. See Vichi v. Koninklijke Philips\nElecs., N.V., 85 A.3d 725, 816 (Del. Ch. 2014). Rather,\nGoodman lost his investment because of market forces and\nDohmen’s trading decisions. Therefore, the dispositive issue\nin this appeal is whether the district court correctly held that\nDohmen’s misrepresentation was made in connection with a\nrequest for limited-partner action such that Malone applies.\n\n We review the district court’s legal conclusions de novo.\nTemkin, 797 F.3d at 688. Looking to Delaware law, as we\nmust, there is no clear indication as to whether the request in\nthis case—a general partner’s request to a limited partner for\nadditional capital—constitutes a request for limited-partner\naction that triggers the duty of disclosure. Most cases suggest\nthat limited-partner action is narrowly defined as actions that\nDelaware law or the partnership organizational documents\nidentify as requiring a discretionary limited-partner vote. See\nMetro Commc’n Corp. BVI v. Advanced Mobilecomm Techs.\nInc., 854 A.2d 121, 156 (Del. Ch. 2004) (defining requests\nfor shareholder action narrowly as communications asking\nshareholders “to make a discretionary decision—such as\nwhether to grant a proxy, to vote yes or no on a particular\nmatter, or to seek appraisal or accept merger consideration”);\nJackson Nat. Life Ins. Co. v. Kennedy, 741 A.2d 377, 388\n(Del. Ch. 1999) (“Since neither the Delaware General\nCorporation Law nor Section II.B of the Certificate\nexpressly provided [the stockholder] with the right to vote\n\f10 GOODMAN V. DOHMEN\n\non [the corporation’s] sale of assets to Fort James, [the\ndirector of the corporation] had no fiduciary obligation to\ndisclose that transaction to [the stockholder].”). However, at\nleast one case has interpreted limited-partner action more\nbroadly. See Alessi v. Beracha, 849 A.2d 939, 944 (Del. Ch.\n2004) (holding that there was a request for shareholder\naction where the corporation announced a program allowing\nminority shareholders to buy or sell shares for a reduced\nprocessing fee).\n\n Moreover, we note that none of the above-cited cases\nactually addresses the partnership context. And while\ncorporate directors and general partners have parallel duties\nof disclosure, they are not perfectly analogous. The types of\ndiscretionary actions regularly taken by shareholders may be\ndistinct from those taken by limited partners. And there may\nbe policy reasons for interpreting limited-partner action\nmore broadly or narrowly than shareholder action.\n\n These are purely state-law issues, which have not been\naddressed by Delaware courts. The issues are of statewide\nimportance because allowing Goodman’s claim to prevail\nunder Malone’s relaxed “materiality” standard might\n“threaten to convert the duty to disclose all material facts in\nconnection with a discretionary vote or tender into a\npervasive, across-the-board rule governing all entity\ndisclosures, because entity owners can usually connect any\ndisclosure to a decision they might make[.]” Metro\nCommc’n Corp., 854 A.2d at 158; see also In re Wayport,\nInc. Litig., 76 A.3d 296, 314–15 (Del. Ch. 2013) (suggesting\nthat plaintiffs may be required to prove proximate causation\neven when there is a request for shareholder action); In re\nOrchard Enterprises, Inc. Stockholder Litig., 88 A.3d 1, 53\n(Del. Ch. 2014) (same).\n\f GOODMAN V. DOHMEN 11\n\n(4) The important and urgent reasons for an immediate\ndetermination by the Supreme Court of the question\ncertified are:\n\n As noted above, there are important and urgent reasons\nfor an immediate determination by the Supreme Court of\nDelaware. The issue of what constitutes limited-partner\naction for purposes of the duty of disclosure is a purely state-\nlaw issue that implicates important Delaware policy\nconsiderations. The issue has not been addressed by\nDelaware courts, but it will be determinative in this case, and\nit is likely to recur in federal courts. A ruling from the\nSupreme Court of Delaware on the certified issue would\nensure accurate application of Delaware law in other\njurisdictions.\n\n(5) If certification is accepted, it is recommended that\ndefendant-appellant Bert Dohmen be appellant for\npurposes of the caption on any filings in the Supreme\nCourt of Delaware and that plaintiff-appellee Albert\nGoodman be appellee for purposes of the caption on any\nfilings in the Supreme Court of Delaware with respect to\nthe question certified. Pursuant to Delaware Supreme\nCourt Rule 41(c)(v), we recommend that defendant-\nappellant file his brief first, followed by plaintiff-appellee.\n\n NOW, THEREFORE, IT IS ORDERED that the\nfollowing question of law is certified to the Supreme Court\nof the State of Delaware for disposition in accordance with\nRule 41 of the Supreme Court:\n\n In a Delaware limited partnership, does a\n general partner’s request to a limited partner\n for a one-time capital contribution constitute\n a request for “limited-partner action” such\n that the general partner has a duty of full\n\f12 GOODMAN V. DOHMEN\n\n disclosure, and, if the general partner fails to\n disclose material information in connection\n with the request, may the limited partner\n prevail on a breach-of-fiduciary-duty claim\n without proving reliance and causation?\n\n We respectfully request that the Supreme Court of\nDelaware resolve this state-law question of first impression,\nwhich will resolve the determinative issue in this case. Our\nphrasing of the question should not be construed to restrict\nthe Supreme Court of Delaware’s consideration of the issues\ninvolved in this case.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Albert Goodman v. Bert Dohmen\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-20\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\n ALBERT GOODMAN, No. 17-56330\\n Plaintiff-Appellee,\\n D.C. No.\\n v. 2:15-cv-00020-FFM\\n\\n BERT DOHMEN, ORDER CERTIFYING A\\n Defendant-Appellant. QUESTION OF LAW\\n PURSUANT TO\\n DELAWARE SUPREME\\n COURT RULE 41\\n\\n Filed September 20, 2019\\n\\n Before: Johnnie B. Rawlinson and Mary H. Murguia,\\nCircuit Judges, and James Rodney Gilstrap, * District Judge.\\n\\n Order\\n\\n\\n\\n\\n *\\n The Honorable James Rodney Gilstrap, United States District\\nJudge for the Eastern District of Texas, sitting by designation.\\n\\f2 GOODMAN V. DOHMEN\\n\\n SUMMARY **\\n\\n\\n Certified Question to the Delaware Supreme Court\\n\\n The panel certified the following question of state law to\\nthe Supreme Court of the State of Delaware:\\n\\n In a Delaware limited partnership, does a\\n general partner’s request to a limited partner\\n for a one-time capital contribution constitute\\n a request for “limited-partner action” such\\n that the general partner has a duty of\\n disclosure, and, if the general partner fails to\\n disclose material information in connection\\n with the request, may the limited partner\\n prevail on a breach-of-fiduciary-duty claim\\n without proving reliance and causation?\\n\\n\\n COUNSEL\\n\\nAndrew B. Holmes and Matthew D. Taylor, Holmes Taylor\\nScott & Jones LLP, Los Angeles, California, for Defendant-\\nAppellant.\\n\\nJeffrey Engerman, Law Offices of Jeffrey C. Engerman PC,\\nLos Alamitos, California, for Plaintiff-Appellee.\\n\\n\\n\\n\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f GOODMAN V. DOHMEN 3\\n\\n ORDER\\n\\n For the reasons explained in the certificate below, we\\nfind that this case involves an important issue of Delaware\\nlaw, which Delaware courts have yet to resolve. Therefore,\\nwe respectfully certify a question of law to the Supreme\\nCourt of the State of Delaware. See Del. Sup. Ct. R. 41.\\n\\n The Clerk of this Court is directed to file in the Supreme\\nCourt of Delaware six certified copies of this certificate and\\nprovide copies of the record if requested. This case is\\nwithdrawn from submission and stayed pending final action\\nby the Supreme Court of Delaware. The Clerk is directed to\\nadministratively close this docket pending further order. The\\nparties shall notify this Court within 14 days of the Supreme\\nCourt of Delaware’s acceptance or rejection of certification,\\nand, if certification is accepted, within 14 days of the\\nissuance of a decision. 1\\n\\n CERTIFICATE OF QUESTION OF LAW\\n\\n(1) The nature and stage of the proceedings are:\\n\\n This is a Delaware limited partnership breach-of-\\nfiduciary-duty case. Albert Goodman, plaintiff-appellee,\\nsued Bert Dohmen, defendant-appellant, alleging a breach of\\nthe duty of disclosure in connection with a request for\\nlimited-partner action. The district court held a bench trial,\\nfound Dohmen liable, and awarded Goodman monetary\\ndamages. Dohmen appealed, arguing, inter alia, that his duty\\nof disclosure was not triggered because there was no request\\n 1\\n In a memorandum disposition filed concurrently herewith, we\\nreject each of Dohmen’s arguments that are not related to the certified\\nissue.\\n\\f4 GOODMAN V. DOHMEN\\n\\nfor limited-partner action within the meaning of Delaware\\nlaw. The appeal was argued and submitted on April 11,\\n2019, in Pasadena, California.\\n\\n(2) The following facts are undisputed: 2\\n\\n Bert Dohmen is well known in the financial-services\\nindustry for his newsletters, which analyze financial markets\\nand world economies. Dohmen had never created or\\nmanaged a hedge fund until the events that gave rise to this\\ncase. Albert Goodman is a wealthy investor who knew of\\nDohmen because of his newsletters. The two met and\\nbecame friends in 1999. Goodman had never invested in a\\nhedge fund until the events that gave rise to this case.\\n\\n In 2010, Dohmen decided to start a hedge fund. He\\nformed the Croesus Fund, L.P. (the “Fund”) as a Delaware\\nlimited partnership. Dohmen also formed Macro Wave\\nManagement, LLC to serve as the Fund’s general partner.\\nMacro Wave had exclusive control and management of the\\nFund, and Dohmen, in turn, was the sole member and\\nmanager of Macro Wave. Under the Fund’s limited\\npartnership agreement, investors in the Fund became limited\\npartners.\\n\\n In September 2011, Dohmen emailed Goodman, asking\\nGoodman to invest in the Fund. Goodman agreed and signed\\na Fund subscription agreement shortly thereafter. On\\nNovember 14, 2011, Goodman made his first $500,000\\ninvestment in the Fund (the “First Investment”). By the date\\nof the First Investment, Dohmen had not made any concrete\\n 2\\n We accept the district court’s factual findings following a bench\\ntrial absent clear error. See United States v. Temkin, 797 F.3d 682, 688\\n(9th Cir. 2015). The district court made these relevant factual findings,\\nwhich we accept and treat as undisputed.\\n\\f GOODMAN V. DOHMEN 5\\n\\nrepresentations regarding whether other investors had joined\\nthe Fund. In fact, Dohmen had disclosed that he had only\\nspoken with two people about the Fund at that point. In\\nNovember 2011, Dohmen invested $200,000 of his own\\nmoney in the Fund.\\n\\n After Goodman made the First Investment, Goodman\\nspecifically inquired about other investors. On November\\n20, 2011, Dohmen made the following statements in an\\nemail: “We have not yet officially announced the start of the\\nfund. You are one of the few who knows it exists. There are\\nseveral other close friends I told about the fund that are now\\nliquidating some assets in order to participate.” Goodman\\nunderstood the italicized statement to mean that more\\ninvestors were coming in, which was important to Goodman.\\nBut, in fact, no friends of Dohmen’s were liquidating assets\\nto invest in the Fund, and Dohmen was well aware of this.\\n\\n On November 26, 2011, Goodman again inquired as to\\n“how big [the Fund] will be.” Dohmen replied:\\n\\n Re the question of ‘how big it will be,’ I can\\n only say that it will probably not be very big,\\n depending on how it is defined. . . . Until we\\n get a good track record, I only want investors\\n I know, or who have been referred by friends,\\n and that I have spoken to. They will all be\\n ‘accredited investors.’ My first goal is to get\\n to 20–30 million. If the fund does well,\\n perhaps we can get to 100 mio by end of\\n 2012. Those are my parameters right now,\\n which of course can always change\\n depending on conditions. We haven’t even\\n announced the fund yet, officially. Only a\\n few of my good friends know about it.\\n\\f6 GOODMAN V. DOHMEN\\n\\n Goodman wired another $500,000 on December 9, 2011\\n(the “Second Investment”), but Goodman continued to ask\\nabout other investors. On December 13, Dohmen stated that\\n“[p]ersonal friends that have expressed interest are now\\nreviewing the documents.” This was knowingly false. The\\nSecond Investment was invested in the Fund on December\\n14, 2011. Dohmen contacted five people other than\\nGoodman regarding the Fund, but none committed to\\ninvesting.\\n\\n On May 14, 2012, Dohmen informed Goodman for the\\nfirst time that there were only two investors in the Fund.\\nGoodman was shocked, and Dohmen offered to allow\\nGoodman to withdraw his investments. Goodman did not\\nwithdraw.\\n\\n As of June 30, 2012—when Goodman could have\\nwithdrawn—the net asset value (“NAV”) of the Fund was\\n$804,021.26. By November 5, 2012, the NAV was down to\\nabout $500,000, and at the end of December 2012, the NAV\\nwas about $357,000. In July 2014, the NAV was down to\\n$100,000. Any remaining NAV has been used by Dohmen\\nto pay for this litigation. Goodman has not received any\\nportion of his investment back. 3\\n\\n In January 2015, Goodman brought suit alleging, inter\\nalia, that Dohmen breached his fiduciary duty of disclosure\\nby failing to disclose that there were only two investors in\\nthe Fund and affirmatively misleading Goodman on this\\npoint. The district court held a bench trial and found for\\nGoodman on the fiduciary-duty claim, reasoning that\\nDohmen’s November 20, 2011, email contained a material\\n\\n 3\\n Goodman also paid about $30,000 in Fund administrative fees and\\ncosts, startup costs, and various other expenses.\\n\\f GOODMAN V. DOHMEN 7\\n\\nmisrepresentation made in connection with Dohmen’s\\nrequest for Goodman to take discretionary limited-partner\\naction. Because the misrepresentation related to a request for\\nlimited-partner action, the district court found that the\\nrelaxed standard from Malone v. Brincat, 722 A.2d 5, 12\\n(Del. 1998), applied, and Goodman did not have to prove\\nreliance or causation.\\n\\n In calculating Goodman’s damages, the district court\\nawarded the lost value of the Second Investment only—\\nbecause Goodman made the First Investment before\\nDohmen’s misrepresentation. The damages award did not\\ninclude losses incurred after June 30, 2012, the date on\\nwhich Goodman could have mitigated his damages by\\nwithdrawing his investments. Dohmen appealed, arguing\\nthat his duty of disclosure was not triggered, and Goodman\\nwas required to prove causation, because there was no\\nrequest for limited-partner action.\\n\\n(3) The question of law set forth below should be\\ncertified to the Supreme Court of the State of Delaware\\nfor the following reasons:\\n\\n “A claim for breach of fiduciary duty requires proof of\\ntwo elements: (1) that a fiduciary duty existed and (2) that\\nthe defendant breached that duty.” Beard Research, Inc. v.\\nKates, 8 A.3d 573, 601 (Del. Ch.), aff’d sub nom. ASDI, Inc.\\nv. Beard Research, Inc., 11 A.3d 749 (Del. 2010). The\\ndistrict court found that Dohmen, as the sole member of\\nMacro Wave and the exclusive controller of the Fund, owed\\nfiduciary duties to Goodman, as the Fund’s limited partner.\\nDohmen does not challenge this finding on appeal.\\n\\n A general partner’s duty of loyalty generally “parallels\\nthat of a corporation’s director.” Davenport Grp. MG, L.P.\\nv. Strategic Inv. Partners, Inc., 685 A.2d 715, 722 (Del. Ch.\\n\\f8 GOODMAN V. DOHMEN\\n\\n1996). In the corporate context, a director has a “duty of\\ndisclosure,” which arises from the duties of care and loyalty.\\nPfeffer v. Redstone, 965 A.2d 676, 684 (Del. 2009) (“The\\nduty of disclosure is not an independent duty, but derives\\nfrom the duties of care and loyalty.”); see also Lonergan v.\\nEPE Holdings, LLC, 5 A.3d 1008, 1023 (Del. Ch. 2010)\\n(finding that general partners owe the same “duty of full\\ndisclosure” in the limited-partnership context). The duty of\\ndisclosure requires a general partner to “disclose fully and\\nfairly all material information within the [general partner’s]\\ncontrol when [he] seeks [limited-partner] action.” Arnold v.\\nSoc’y for Sav. Bancorp, Inc., 650 A.2d 1270, 1277 (Del.\\n1994) (citation omitted). General partners breach their duty\\nof disclosure by making materially false statements,\\nomitting material facts, or making partial disclosures that are\\nmaterially misleading. Pfeffer, 965 A.2d at 684. 4\\n\\n Delaware law distinguishes between disclosures made\\n“in connection with a request for [limited-partner] action”\\nand disclosures made outside of this context. Malone,\\n722 A.2d at 12. When a general partner makes a misleading\\nstatement or omission in connection with a request for\\nlimited-partner action, the plaintiff need not prove reliance,\\ncausation, or actual damages. Id. Instead, the plaintiff simply\\nmust prove that the alleged omission or misrepresentation\\nwas “material” to the action being sought. Id.\\n\\n Here, the district court found that Dohmen’s misleading\\nNovember 20, 2011, statement was made in connection with\\na request for limited-partner action. Specifically, Dohmen\\n\\n 4\\n Although many of the cases cited herein reference “shareholder\\naction” or “stockholder action,” we use those terms interchangeably with\\n“limited-partner action” because corporate directors and general partners\\nowe the same duty of disclosure.\\n\\f GOODMAN V. DOHMEN 9\\n\\nwas requesting that Goodman invest additional capital.\\nTherefore, the district court found that Malone’s relaxed\\n“materiality” standard applied, and Goodman did not have\\nto prove causation. This conclusion was essential to\\nGoodman’s success. The district court found that Goodman\\ncould not prove causation, if required, because Goodman\\ncould not show “that the lost investment value was\\nproximately caused by there being only two investors in the\\nFund”—i.e., loss causation. See Vichi v. Koninklijke Philips\\nElecs., N.V., 85 A.3d 725, 816 (Del. Ch. 2014). Rather,\\nGoodman lost his investment because of market forces and\\nDohmen’s trading decisions. Therefore, the dispositive issue\\nin this appeal is whether the district court correctly held that\\nDohmen’s misrepresentation was made in connection with a\\nrequest for limited-partner action such that Malone applies.\\n\\n We review the district court’s legal conclusions de novo.\\nTemkin, 797 F.3d at 688. Looking to Delaware law, as we\\nmust, there is no clear indication as to whether the request in\\nthis case—a general partner’s request to a limited partner for\\nadditional capital—constitutes a request for limited-partner\\naction that triggers the duty of disclosure. Most cases suggest\\nthat limited-partner action is narrowly defined as actions that\\nDelaware law or the partnership organizational documents\\nidentify as requiring a discretionary limited-partner vote. See\\nMetro Commc’n Corp. BVI v. Advanced Mobilecomm Techs.\\nInc., 854 A.2d 121, 156 (Del. Ch. 2004) (defining requests\\nfor shareholder action narrowly as communications asking\\nshareholders “to make a discretionary decision—such as\\nwhether to grant a proxy, to vote yes or no on a particular\\nmatter, or to seek appraisal or accept merger consideration”);\\nJackson Nat. Life Ins. Co. v. Kennedy, 741 A.2d 377, 388\\n(Del. Ch. 1999) (“Since neither the Delaware General\\nCorporation Law nor Section II.B of the Certificate\\nexpressly provided [the stockholder] with the right to vote\\n\\f10 GOODMAN V. DOHMEN\\n\\non [the corporation’s] sale of assets to Fort James, [the\\ndirector of the corporation] had no fiduciary obligation to\\ndisclose that transaction to [the stockholder].”). However, at\\nleast one case has interpreted limited-partner action more\\nbroadly. See Alessi v. Beracha, 849 A.2d 939, 944 (Del. Ch.\\n2004) (holding that there was a request for shareholder\\naction where the corporation announced a program allowing\\nminority shareholders to buy or sell shares for a reduced\\nprocessing fee).\\n\\n Moreover, we note that none of the above-cited cases\\nactually addresses the partnership context. And while\\ncorporate directors and general partners have parallel duties\\nof disclosure, they are not perfectly analogous. The types of\\ndiscretionary actions regularly taken by shareholders may be\\ndistinct from those taken by limited partners. And there may\\nbe policy reasons for interpreting limited-partner action\\nmore broadly or narrowly than shareholder action.\\n\\n These are purely state-law issues, which have not been\\naddressed by Delaware courts. The issues are of statewide\\nimportance because allowing Goodman’s claim to prevail\\nunder Malone’s relaxed “materiality” standard might\\n“threaten to convert the duty to disclose all material facts in\\nconnection with a discretionary vote or tender into a\\npervasive, across-the-board rule governing all entity\\ndisclosures, because entity owners can usually connect any\\ndisclosure to a decision they might make[.]” Metro\\nCommc’n Corp., 854 A.2d at 158; see also In re Wayport,\\nInc. Litig., 76 A.3d 296, 314–15 (Del. Ch. 2013) (suggesting\\nthat plaintiffs may be required to prove proximate causation\\neven when there is a request for shareholder action); In re\\nOrchard Enterprises, Inc. Stockholder Litig., 88 A.3d 1, 53\\n(Del. Ch. 2014) (same).\\n\\f GOODMAN V. DOHMEN 11\\n\\n(4) The important and urgent reasons for an immediate\\ndetermination by the Supreme Court of the question\\ncertified are:\\n\\n As noted above, there are important and urgent reasons\\nfor an immediate determination by the Supreme Court of\\nDelaware. The issue of what constitutes limited-partner\\naction for purposes of the duty of disclosure is a purely state-\\nlaw issue that implicates important Delaware policy\\nconsiderations. The issue has not been addressed by\\nDelaware courts, but it will be determinative in this case, and\\nit is likely to recur in federal courts. A ruling from the\\nSupreme Court of Delaware on the certified issue would\\nensure accurate application of Delaware law in other\\njurisdictions.\\n\\n(5) If certification is accepted, it is recommended that\\ndefendant-appellant Bert Dohmen be appellant for\\npurposes of the caption on any filings in the Supreme\\nCourt of Delaware and that plaintiff-appellee Albert\\nGoodman be appellee for purposes of the caption on any\\nfilings in the Supreme Court of Delaware with respect to\\nthe question certified. Pursuant to Delaware Supreme\\nCourt Rule 41(c)(v), we recommend that defendant-\\nappellant file his brief first, followed by plaintiff-appellee.\\n\\n NOW, THEREFORE, IT IS ORDERED that the\\nfollowing question of law is certified to the Supreme Court\\nof the State of Delaware for disposition in accordance with\\nRule 41 of the Supreme Court:\\n\\n In a Delaware limited partnership, does a\\n general partner’s request to a limited partner\\n for a one-time capital contribution constitute\\n a request for “limited-partner action” such\\n that the general partner has a duty of full\\n\\f12 GOODMAN V. DOHMEN\\n\\n disclosure, and, if the general partner fails to\\n disclose material information in connection\\n with the request, may the limited partner\\n prevail on a breach-of-fiduciary-duty claim\\n without proving reliance and causation?\\n\\n We respectfully request that the Supreme Court of\\nDelaware resolve this state-law question of first impression,\\nwhich will resolve the determinative issue in this case. Our\\nphrasing of the question should not be construed to restrict\\nthe Supreme Court of Delaware’s consideration of the issues\\ninvolved in this case.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4475,"cells":{"id":{"kind":"number","value":4663417,"string":"4,663,417"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Cesar Becerra"},"decision_date":{"kind":"string","value":"2019-09-23"},"docket_number":{"kind":"string","value":"17-30050"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Susan P. Graber and Marsha S. Berzon, Circuit Judges, and Eduardo C. Robreno, * District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"BERZON, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\n UNITED STATES OF AMERICA, No. 17-30050\\n Plaintiff-Appellee,\\n D.C. No.\\n v. 3:14-cr-00227-MO-1\\n\\n CESAR ANTONIO BECERRA,\\n Defendant-Appellant. OPINION\\n\\n Appeal from the United States District Court\\n for the District of Oregon\\n Michael W. Mosman, Chief District Judge, Presiding\\n\\n Argued and Submitted March 7, 2019\\n Portland, Oregon\\n\\n Filed September 23, 2019\\n\\n Before: Susan P. Graber and Marsha S. Berzon, Circuit\\n Judges, and Eduardo C. Robreno, * District Judge.\\n\\n Opinion by Judge Berzon;\\n Dissent by Judge Graber\\n\\n\\n\\n\\n *\\n The Honorable Eduardo C. Robreno, United States District Judge\\nfor the Eastern District of Pennsylvania, sitting by designation.\\n\\n2 UNITED STATES V. BECERRA\\n\\n SUMMARY **\\n\\n\\n Criminal Law\\n\\n Reversing a conviction and remanding for a new trial,\\nthe panel held that it is bound by the holdings in Guam v.\\nMarquez, 963 F.2d 1311 (9th Cir. 1992), that a trial court\\ndoes not satisfy its duty to instruct jurors in a criminal case\\njust by providing jurors with a set of written instructions to\\nuse during deliberations, and that when a trial court abdicates\\nits responsibility to charge the jury orally as to the elements\\nof the charged crimes, it commits structural error.\\n\\n The panel held that because the trial judge in this case\\ndelivered no such oral charge, the requisites for reversing on\\nplain error review have been met.\\n\\n Dissenting, Judge Graber wrote that the error was\\nharmless in this case in which the court gave the jury written\\ninstructions, the final versions of which defendant concedes\\nwere correct; the court orally instructed the jury to read those\\ninstructions; the jurors confirmed that they had read the\\nwritten instructions; and the evidence of guilt was\\noverwhelming.\\n\\n\\n\\n\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\n UNITED STATES V. BECERRA 3\\n\\n COUNSEL\\n\\nMichael R. Levine (argued), Levine & McHenry LLC,\\nPortland, Oregon, for Defendant-Appellant.\\n\\nThomas S. Ratcliffe (argued), Assistant United States\\nAttorney; Kelly A. Zusman, Appellate Chief; Billy J.\\nWilliams, United States Attorney; United States Attorney’s\\nOffice, Portland, Oregon; for Plaintiff-Appellee.\\n\\n\\n OPINION\\n\\nBERZON, Circuit Judge:\\n\\n Our circuit held nearly thirty years ago that oral\\ninstructions to the jury as to the law they must apply are an\\nessential feature of a jury trial. Guam v. Marquez, 963 F.2d\\n1311, 1314–15 (9th Cir. 1992). A trial court does not satisfy\\nits duty to instruct jurors in a criminal case just by providing\\nthose jurors with a set of written instructions to use during\\ndeliberations. Id. We further determined that when a trial\\ncourt abdicates its responsibility to charge the jury orally as\\nto the elements of the charged crimes, it commits structural\\nerror. Id. at 1315–16. We are bound by those holdings and\\nso reverse the conviction in this case.\\n\\n I\\n\\n In February 2016, Cesar Becerra was tried on six counts\\nfor crimes related to the possession and distribution of heroin\\nand methamphetamine. 1 During the final pretrial\\n\\n 1\\n Specifically, Becerra proceeded to trial on the following charges:\\n(1) possession with intent to distribute heroin in June 2014;\\n\\n4 UNITED STATES V. BECERRA\\n\\nconference, the district court told the parties that it would\\nprovide the jurors with written copies of the jury instructions\\nat the beginning of the trial. The court explained that it\\nwould confirm with the jurors at some point during the trial\\nthat they had in fact read the provided instructions. So long\\nas the instructions were not subsequently changed, the court\\nsaid, it would not read the instructions aloud to the jurors.\\nNeither party objected to this planned course of action.\\n\\n The district court implemented its plan largely as\\nannounced. On the morning of the first day of trial, each\\njuror was provided a set of draft jury instructions. These\\ninstructions, which largely followed our circuit’s model jury\\ninstructions, included explanations of the substantive\\noffenses and definitions of key terms, such as “reasonable\\ndoubt,” “possession,” and “knowingly.” See Model Crim.\\nJury Instr. 9th Cir. §§ 1.5, 1.7, 1.8, 3.1–3.2, 3.5–3.9, 3.11,\\n3.14–3.15, 3.18, 4.1, 4.8–4.9, 4.14, 4.17, 5.7, 6.10, 7.1, 7.3–\\n7.6, 8.72, 9.15–9.16, 9.18 (2010). The court told the jurors\\nto read the provided instructions: “I’m not going to give you\\na quiz on” the instructions, the court said, “but you will be\\nasked if you read it. So please read it tonight.”\\n\\n When it gave them the written instructions, the court read\\naloud to the jurors a few preliminary instructions, which, as\\nthe court explained, were “geared to . . . telling you a little\\nbit about your job as jurors.” These instructions included,\\nfor example, an explanation of the jurors’ duty to deliberate,\\na brief, non-technical explanation of the charges being tried,\\n\\n(2) possession with intent to distribute heroin in February 2014;\\n(3) possession of a 9 mm caliber firearm in furtherance of a drug-\\ntrafficking crime in February 2014; (4) possession of a .22 caliber\\nfirearm in furtherance of a drug-trafficking crime in February 2014;\\n(5) possession with intent to distribute heroin in December 2012; and\\n(6) distribution of heroin in December 2011.\\n\\n UNITED STATES V. BECERRA 5\\n\\nand an explanation of what is (and what is not) evidence.\\nThese preliminary oral instructions did not include any\\nexplanation of the elements of the three crimes charged in\\nthe six counts, or otherwise guide the jurors as to the\\nsubstantive law they were expected to apply. After a recess,\\nthe trial commenced with the parties’ opening statements.\\n\\n At the close of evidence on the next trial day, the district\\ncourt retrieved the draft jury instructions from those jurors\\nwho had brought the instructions back to the courthouse and\\nprovided each juror with a set of final instructions to use\\nduring deliberations. The court then asked Juror No. 1 in\\nopen court: “[H]ave you read each and every one of [the\\ndraft] instructions . . . ?” Juror No. 1 said, “Yes.” The court\\ncontinued: “Two?”, “Three?”, and so on through “Twelve?”\\nand “Our alternate?” Each juror, in turn, responded: “Yes.”\\nNo further follow-up was conducted by either the court or\\nthe parties to assess whether the jurors had fully read and\\nunderstood the draft instructions they had been provided.\\n\\n Between the draft and final instructions, one instruction\\nwas added and two were modified. Specifically, the court\\n(1) added an instruction explaining how the jurors should\\ntreat evidence of acts not charged; (2) added a sentence to\\nthe instruction explaining how jurors should evaluate the\\nevidence of a cooperating witness; and (3) removed a\\nsentence in an instruction on the lesser-included offense of\\npossession of a controlled substance. The court notified the\\njurors of these changes and read the full text of the three new\\nand modified instructions aloud. The district court did not\\nafter the close of evidence read aloud any of the remaining\\ntwenty-seven instructions, or otherwise orally instruct the\\njurors as to the substantive law.\\n\\n6 UNITED STATES V. BECERRA\\n\\n The parties then delivered closing arguments to the\\njurors. The next morning, the jurors returned to deliberate.\\nThey reached a guilty verdict on all six counts that same day.\\n\\n In March 2017, the district court sentenced Becerra to\\n60 months of incarceration. Becerra timely appealed.\\n\\n II\\n\\n Becerra’s principal argument on appeal is that the district\\ncourt erred by not reading the jury instructions aloud to the\\njury. 2 Becerra did not object in the district court to the plan\\nto provide primarily written instructions or to the\\nimplementation of that plan. We therefore review the failure\\nto provide an oral jury charge for plain error. United States\\nv. Depue, 912 F.3d 1227, 1233 (9th Cir. 2019) (en banc).\\nUnder plain error review, we may reverse a district court’s\\nruling only if (1) there was error, (2) the error was plain,\\n(3) the error affected substantial rights, and (4) the error\\nseriously affected the fairness, integrity, or public reputation\\nof judicial proceedings. Id. at 1232.\\n\\n A\\n\\n The first two requirements are clearly met. We\\ndisapproved an essentially similar trial procedure in\\nMarquez. The trial court in Marquez, like the district court\\nhere, never orally instructed the jurors as to the charged\\ncrimes. 963 F.2d at 1312. Instead, the jurors in Marquez\\nwere provided, after closing arguments, with a set of written\\njury instructions that included “the elements of the crimes”\\n\\n 2\\n Becerra also appeals the district court’s denial of his motion to\\nsuppress. We affirm the district court’s decision to deny the motion to\\nsuppress in a memorandum disposition filed contemporaneously with\\nthis opinion.\\n\\n UNITED STATES V. BECERRA 7\\n\\nbeing tried and the definitions for terms “mentioned in the\\ndescription[s] of the offense[s] . . . .” Id. at 1312–13. Before\\nsending the jurors to deliberate, the trial court in Marquez\\nadvised the jurors that it had provided them with written jury\\ninstructions. It then told the jurors: “You will have [the\\ninstructions] with you, so there is no need of reading it to\\nyou.” Id. at 1313.\\n\\n Marquez held that it was error for the trial court not “to\\ninstruct the jury on the elements of the [charged] offense\\nbefore submitting [the] matter to the jury.” Id. at 1314. Just\\nproviding jurors with written instructions delineating the\\nelements of the charged offenses was not enough. 3 Id.\\nat 1315–16. Relying on the Third Circuit’s decision in\\nUnited States v. Noble, 155 F.2d 315 (3d Cir. 1946),\\nMarquez reasoned that an oral jury charge is necessary to\\nensure that “each member of the jury has actually received\\nthe instructions.” 4 963 F.2d at 1314 (quoting Noble,\\n155 F.2d at 318).\\n\\n\\n\\n 3\\n Marquez at one point says that “all jury instructions must be read\\naloud to the jury in the presence of counsel and the defendant.” 963 F.2d\\nat 1314–15 (emphasis added). This summary may overstate the holding\\nof the case. Elsewhere in the opinion, Marquez states that the trial court\\nerred by not reading aloud “instructions defining the offense charged.”\\nId. at 1314; see also id. at 1315. The difference does not matter here.\\nThe trial court here did not read aloud any of the offense-defining\\ninstructions nor most of the other instructions.\\n 4\\n Marquez and Noble further reasoned that oral instructions are\\nnecessary because “counsel and the defendant [are] entitled to hear the\\ninstructions in order that they may, if they are incorrect, object to them\\nand secure their prompt correction by the trial judge.” Id. at 314 (quoting\\nNoble, 155 F.2d at 318). This secondary rationale lacks persuasive force.\\nAs long as jury instructions are provided in written form to the parties\\n\\n8 UNITED STATES V. BECERRA\\n\\n Marquez’s holding that an oral charge is a necessary\\nfeature of our criminal trial process reflects the critical\\nimportance of communicating effectively to jurors in detail\\nthe legal principles governing their deliberations. Jurors in\\nour criminal justice system are delegated the awesome\\nresponsibility of determining the innocence or guilt of a\\ndefendant put before them. A determination of guilt can, of\\ncourse, severely restrict a defendant’s physical liberty for\\nyears or decades. And the jury’s decision will generate a\\ncascade of other consequences: A citizen found guilty often\\nis unable to participate in our democratic system by voting,\\nsee, e.g., Wash. Const. art. VI, § 3; Or. Rev. Stat.\\n§ 137.281(3)(d); a non-citizen may lose her ability to remain\\nin the country, see, e.g., Martinez v. Mukasey, 551 F.3d 113,\\n118 n.3 (9th Cir. 2008).\\n\\n Because jurors are assigned such a critical role in our\\ncriminal justice system, “[i]t is essential to the\\nadministration of justice that a jury scrupulously follow the\\nlaw as given to it by the judge, and to that end his instructions\\nshould be clear and firmly fixed in the mind of each juror.”\\nBabson v. United States, 330 F.2d 662, 666 (9th Cir. 1964).\\nSince before the founding of our Republic, courts have\\n\\nsufficiently in advance, objections can be made well before instructions\\nare distributed to the jurors.\\n\\n Federal Rule of Criminal Procedure 30 has long required that trial\\ncourts provide the parties with an opportunity to make specific\\nobjections to the jury instructions; that opportunity must take place “out\\nof the jury’s hearing and, on request, out of the jury’s presence.” Fed.\\nR. Crim. P. 30(d). In practice, district courts comply with this rule by\\nproviding the parties an opportunity to review and to object to the\\nplanned instructions before they are read to the jury. 2A Fed. Prac. &\\nProc. Crim. § 484 (4th ed.); see also United States v. Loya, 807 F.2d\\n1483, 1492 (9th Cir. 1987); Las Vegas Merchant Plumbers Ass’n v.\\nUnited States, 210 F.2d 732, 744 (9th Cir. 1954).\\n\\n UNITED STATES V. BECERRA 9\\n\\nuniversally met the need to educate jurors by orally advising\\njurors “in the presence of the parties, the counsel, and all\\nothers . . . in matters of law arising upon th[e] evidence.”\\n3 William Blackstone, Commentaries *375; see also United\\nStates v. Robinson, 724 F.3d 878, 887 (7th Cir. 2013); Noble,\\n155 F.2d at 317 n.1 (quoting Thomas M. Cooley,\\nConstitutional Limitations *321 (1st ed. 1868)).\\n\\n There are excellent reasons this feature of our trial\\nprocess endures. For one, many jurors may not adequately\\ncomprehend written instructions. It is no secret that jury\\ninstructions are often written in language more suitable for\\nlawyers than laypersons. See, e.g., Jonathan Barnes,\\nTailored Jury Instructions: Writing Instructions that Match\\na Specific Jury’s Reading Level, 87 Miss. L.J. 193, 195\\n(2018); Prentice H. Marshall et al., Pattern Criminal Jury\\nInstructions: Report of the Federal Judicial Center\\nCommittee to Study Jury Instructions, at vii, 79–83 (1982);\\nPhil H. Cook, Instructionese: Legalistic Lingo of Contrived\\nConfusion, 7 J. Mo. B. 113 (1951). Written instructions can\\nbe especially impenetrable for those jurors with limited\\nreading comprehension skills. 5 See Laurence J. Severance\\net. al., Toward Criminal Jury Instructions that Jurors Can\\nUnderstand, 75 J. Crim. L. & Criminology 198, 224 (1984);\\nRobert P. Charrow & Veda R. Charrow, Making Legal\\n\\n 5\\n This group of jurors is not insignificant. Fourteen percent of\\nAmerican adults have less than basic prose literacy; these adults range\\nfrom the nonliterate to those with the ability to “locat[e] easily\\nidentifiable information in short, commonplace prose texts.” Nat’l Ctr.\\nfor Education Statistics, A First Look at the Literacy of America’s Adults\\nin the 21st Century 2–4 (2006). Another 29 percent have only basic\\nprose literacy—in other words, can “read[] and understand[] information\\nin short, commonplace prose texts.” Id. at 3. Only 13 percent of\\nAmerican adults have the skills necessary to “read[] lengthy, complex,\\nabstract prose texts.” Id.\\n\\n10 UNITED STATES V. BECERRA\\n\\nLanguage Understandable: A Psycholinguistic Study of Jury\\nInstructions, 79 Colum. L. Rev. 1306, 1320–21 (1979). And\\neven if a jury is comprised of an unusually educated cross-\\nsection of the community, many of us at times succumb to\\nthe temptation to glaze over a long paragraph of text or flip\\nover a few pages of a lengthy stack of papers. When the\\ninstructions are read orally, tonal inflection can make the\\ncontent of the instructions more accessible, as well as\\ndiscourage the “tuning out” common when reading dense\\nmaterial. Oral instruction in the formal courtroom setting\\nthus assures that jurors are exposed to the substance of the\\nessential instructions by at least one sensual route.\\n\\n The oral charge also performs a second, signaling\\nfunction that cannot be replaced by a printout or a pamphlet.\\nJury instructions are not the judicial equivalent of a car\\nmanual or a cookbook. When an enrobed judge orally\\ncharges the jury, the jurors are impressed with the fact that\\nthey have been entrusted with the power to decide the\\ndefendant’s fate. This oral, public ritual helps ensure that\\n“jurors . . . recognize the enormity of their task and . . . take\\n[that task] seriously.” Nancy S. Marder, Bringing Jury\\nInstructions into the Twenty-First Century, 81 Notre Dame\\nL. Rev. 449, 465 (2006). By analogy, reading a sermon is\\nnot the same as hearing it read in church or synagogue by a\\npastor or priest or rabbi. If it were, religious leaders would\\njust hand out the sermons and end the services early.\\n\\n For these reasons, the historic practice of oral jury\\ninstruction remains central to the fairness of jury trials. That\\nconclusion does not mean that procedures for instructing\\njuries have remained static—or should. Additions to oral\\ninstructions have enhanced the likelihood that jury\\ninstructions will effectively communicate to jurors the legal\\nprinciples governing their critical task. See id. at 475–82.\\n\\n UNITED STATES V. BECERRA 11\\n\\nFor example, pattern jury instructions, now routinely\\npromulgated and updated, originated in the early 20th\\ncentury and became widely used in the 1960s. 6 See Robert\\nG. Nieland, Assessing the Impact of Pattern Jury\\nInstructions, 62 Judicature 185, 185–87 (1978). Also,\\nalthough the use of written jury instructions was once a\\nrarity, courts now often supplement oral jury instructions\\nwith written ones, giving them to jurors to read\\ncontemporaneously with the oral instructions or to take to\\nthe jury room after the oral charge. See Cal. Penal Code\\n§§ 1093(f), 1137 (providing jurors with a right to request\\nwritten instructions); Ninth Circuit Jury Instruction\\nCommittee, Manual of Model Criminal Jury Instructions\\n§ 3.1 (2010) (“A copy of these instructions will be available\\nin the jury room for you to consult.”); see also William W.\\nSchwarzer, Communicating with Juries: Problems and\\nRemedies, 69 Calif. L. Rev. 731, 756–57 (1981). Written\\ninstructions are mandatory in some jurisdictions. See, e.g.,\\nOr. Rev. Stat. § 136.330 (1); Or. R. Civ. P. 59(B); Wash.\\nSup. Ct. Civ. R. 51(h). We have no doubt that there is room\\nfor more useful innovation as to both how jury instructions\\nare drafted and how they are communicated to the jurors. 7\\n 6\\n As another example, Federal Rule of Criminal Procedure 30 was\\nmodified in 1987 to allow district courts to charge the jury either before\\nor after closing arguments. See Fed. R. Crim. P. 30 Advisory\\nCommittee’s Note to 1987 Amendment.\\n 7\\n Scholars, judges, and lawyers have long recognized that jurors far\\ntoo often decide cases without an adequate understanding of the law they\\nare required to apply. See, e.g., United States v. Cohen, 145 F.3d 82, 93\\n(2d Cir. 1942) (Hand, J.); Nancy S. Marder, Bringing Jury Instructions\\ninto the Twenty-First Century, 81 Notre Dame L. Rev. 449, 454–58\\n(2006); Schwarzer, Communicating with Juries: Problems and\\nRemedies, supra; David U. Strawn & Raymond W. Buchanan, Jury\\nConfusion: A Threat to Justice, 59 Judicature 478, 480–81 (1976); Wylie\\nA Aitken, Comment: The Jury Instruction Process—Apathy or\\n\\n12 UNITED STATES V. BECERRA\\n\\nBut even as the exact form of a trial court’s jury charge has\\nevolved, there has always been a bedrock recognition that\\nthe trial court must orally charge the jury before\\ndeliberations commence.\\n\\n Notably, the government in this case does not contend\\notherwise. It recognizes that, as Marquez makes clear, the\\ndistrict court in this case erred by not reading the essential\\njury instructions aloud. Rather, the government’s central\\ncontention is that Marquez is not here binding as to its\\nsecond holding—that the failure of the district court to read\\njury instructions aloud to the jurors in open court is structural\\nerror and so not subject to harmless error analysis. We turn\\nto that contention.\\n\\n B\\n\\n Contrary to the government’s submission, Marquez is\\nbinding on us not only with regard to its substantive holding\\nas to the necessity of oral jury instructions but also as to its\\nsecond holding—that the district court committed structural\\nerror by failing to read an oral charge to the jurors.\\n\\n Marquez’s conclusion that the omission of an oral charge\\nis structural error rests primarily on its observation that an\\nappellate court cannot meaningfully assess whether failure\\nto provide oral instructions impacted “the jury’s\\nperformance of its duties” in a particular trial. Id.at 1315–\\n16. In Marquez, “the record [was] silent regarding whether\\nany of the jurors read the instructions that were submitted to\\nthem.” Id. at 1316. Here, there was an attempt to ascertain\\n\\nAggressive Reform, 49 Marquette L. Rev. 137, 137 n.2 (1965); Robert\\nWinslow, The Instruction Ritual, 13 Hastings L. J. 456, 469–70 (1962).\\n\\n UNITED STATES V. BECERRA 13\\n\\nthat the jurors read the instructions provided to them. 8 But\\nwe do not assess whether an error is structural on a case-by-\\ncase basis. “[A] constitutional error is either structural or it\\nis not.” Neder v. United States, 527 U.S. 1, 14 (1999). “An\\nerror can count as structural even if the error does not lead\\nto fundamental unfairness in every case.” Weaver v.\\nMassachusetts, ___ U.S. ___, 137 S. Ct. 1899, 1908 (2017).\\n\\n The dissent takes issue with this recent Supreme Court\\npronouncement, arguing that “deciding whether a particular\\nerror is properly labeled ‘structural’ entails a close look at\\nspecifics.” Of course, we must determine on a case-by-case\\nbasis whether there was an error, and, if so, whether that kind\\nof error is structural. Failure to conduct a trial in public\\nabsent any factual findings is error, Waller v. Georgia,\\n467 U.S. 39, 45–46 (1984), and structural, see id. at 49–50;\\nconducting a trial or hearing after making adequate factual\\nfindings is not error at all. Id. at 45. Omission of a single\\nelement of the charged offense from the jury instructions is\\nerror, but not structural error, Neder, 527 U.S. at 8–11;\\nomission of the burden of proof from those instructions is\\nerror, and structural, see id. at 11. And in some instances\\nwhere a structural error has occurred, the relief required to\\ncure that error may not result in a new trial for the defendant.\\nWaller, 467 U.S. at 49–50. But none of these caveats means\\n\\n 8\\n We note that the trial judge’s questioning of the jurors was\\nperfunctory, and the jurors were not placed under oath. Moreover, the\\njurors’ “yes” answers do not establish that they read the instructions\\ncarefully enough to comprehend their essentials. A simple “yes” also\\ndoes not answer: Did the juror read the instruction alone or with one or\\nmore persons? Did the juror read the instructions in one or more sittings?\\nDid the juror consult dictionaries or other legal sources to help him or\\nher understand any terms? Did the juror discuss the instructions with\\nother jurors or other persons? Did the juror read the instructions while\\nengaged in other activities such as watching television?\\n\\n14 UNITED STATES V. BECERRA\\n\\nthat once we identify an error that is structural in kind—here,\\nfailure to instruct the jury orally—we reconsider whether\\nthat error should be deemed structural in the specific case\\nbefore us.\\n\\n Of course, there may be some cases where it is hard to\\ndiscern whether the trial court acted in a manner that we have\\nalready deemed structural error, or whether the trial court\\ncommitted error that is related but distinct in kind. Cf.\\nJohnson v. United States, 520 U.S. 461, 469 (1997). This is\\nnot that case. The error held structural in Marquez was the\\nfailure of the judge orally “to read the elements of the crime\\nto the jury,” 963 F.3d at 1315 (capitalization modified); it\\nwas not the failure to ascertain whether the jury read written\\ninstructions provided to it in lieu of oral instruction.\\n\\n Thus, under Marquez, the failure to instruct the jury\\norally was structural error absent some intervening higher\\nlegal authority “clearly irreconcilable” with Marquez.\\nGammie, 335 F.3d at 900; see also United States v.\\nXinidakis, 598 F.3d 1213, 1216 (9th Cir. 2010). There is no\\nsuch authority.\\n\\n No en banc case or Supreme Court case has held that the\\nfailure to instruct the jury orally is not structural error. And\\nthe overall reach of the structural error doctrine has remained\\nlargely the same since Marquez was decided in 1992. Then\\nand now, “[t]he purpose of the structural error doctrine [has\\nbeen] to ensure insistence on certain basic, constitutional\\nguarantees that should define the framework of any criminal\\ntrial.” Weaver, 137 S. Ct. at 1907. The “defining feature”\\nof such error, is that it “‘affect[s] the framework within\\nwhich the trial proceeds,’ rather than being ‘simply an error\\nin the trial process itself.’” Id. (quoting Arizona v.\\nFulminante, 499 U.S. 306, 310 (1991)) (alteration in\\n\\n UNITED STATES V. BECERRA 15\\n\\noriginal). Marquez cited Fulminante. See 963 F.2d at 1315–\\n16.\\n\\n Marquez’s reasoning is not irreconcilable with later case\\nlaw either. One of Marquez’s central premises for its\\nstructural error holding—that the failure to provide any oral\\ninstructions to the jurors is an error that as a practical matter\\n“precludes a harmless error analysis,” id. at 1316—is fully\\ncompatible with post-Fulminante case law. The Supreme\\nCourt in Weaver recently explained that a structural error\\napproach is appropriate for cases in which “the effects of the\\nerror are simply too hard to measure,” making harmless error\\nreview futile. 137 S. Ct. at 1908.\\n\\n In sum, neither Marquez’s holding nor its reasoning is at\\nodds with now controlling structural error precedents. We\\ntherefore remain bound by Marquez. The virtually complete\\nfailure to instruct the jurors orally was structural error.\\n\\n C\\n\\n Even if we were not bound by Marquez, we would\\nnonetheless conclude that it is appropriate to categorize the\\nfailure to charge jurors orally as structural error.\\n\\n As the Court explained recently in Weaver, an error is\\nusually deemed structural for at least one of three broad\\nreasons, although “[i]n a particular case, more than one of\\nthese rationales may be part of the explanation for why an\\nerror is deemed to be structural.” Id. at 1908. First, an error\\nis structural if it “deprive[s] defendants of ‘basic protections’\\nwithout which ‘a criminal trial cannot reliably serve its\\nfunction as a vehicle for determination of guilt or\\ninnocence,” Neder, 527 U.S. at 8–9 (quoting Rose v. Clark,\\n478 U.S. 570, 577–78 (1986)); see also Weaver, 137 S. Ct.\\nat 1908. Second, errors have been found structural where\\n\\n16 UNITED STATES V. BECERRA\\n\\nthe effect of those errors are “necessarily unquantifiable and\\nindeterminate,” making a harmless error analysis\\nimpossible. Neder, 527 U.S. at 11 (quoting Sullivan v.\\nLouisiana, 508 U.S. 275, 282 (1993)); see also Weaver,\\n137 S. Ct. at 1908. Finally, certain errors have been\\nconsidered structural where the “right at issue is not\\ndesigned to protect the defendant from erroneous conviction\\nbut instead protects some other interest.” Weaver, 137 S. Ct.\\nat 1908; see also McKaskle v. Wiggins, 465 U.S. 168, 177,\\nn.8 (1984). Each of these rationales is implicated by the\\nfailure to instruct the jury orally.\\n\\n First, for the reasons discussed earlier, assuring that\\njurors are generally aware of the law to be applied is a\\nprotection without which a criminal trial cannot reliably\\nserve its function. When a trial court does not provide the\\njurors with an oral charge, there has not “simply [been] an\\nerror in the trial process.” Weaver, 137 S. Ct. at 1907\\n(quoting Fulminante, 499 U.S. at 310). The oral charge\\nserves both to ensure that jurors are aware of the correct law\\nand to instill in the jurors proper sense of respect for the\\njury’s role in the criminal justice process. See supra at 8–\\n12. Without an oral jury charge, the court has omitted a\\nfundamental and ubiquitous feature of the criminal trial\\nframework—the equivalent of holding no voir dire before\\nselecting a jury, or holding the trial outside of public view.\\nSee Waller, 467 U.S. at 49 n.9. Moreover, just as presidents\\ntake the oath of office in public rather than by signing in\\nprivate a document containing the oath, so as to convey that\\nthe president’s duty is of profound importance, the oral\\ndelivery of jury instructions in open court, by a judge\\nwearing a robe, sitting before the prosecution, defendants,\\nthe jury, and the courtroom audience, conveys to the jurors\\nthat the jury’s responsibility is of profound importance, as it\\n\\n UNITED STATES V. BECERRA 17\\n\\nindeed is. 9 That recognition as well is essential to the\\nfunctioning of the jury system.\\n\\n Second, the impact on the jurors’ verdict of a failure to\\ninstruct jurors orally is “necessarily unquantifiable and\\nindeterminate.” Neder, 527 U.S. at 11 (quoting Sullivan, 508\\nU.S. at 282). Because the court’s failure to instruct\\nimplicates “all of the jury’s findings,” Sullivan, 508 U.S.\\nat 281, whether the jurors would have ruled the same way\\nhad they been orally instructed cannot meaningfully be\\ndetermined after the fact. To assess harmless error in this\\ncircumstance, a “reviewing court can only engage in pure\\nspeculation—its view of what a reasonable jury would have\\ndone.” Id. Even where the evidence of guilt is\\noverwhelming, the entire premise of the jury trial system is\\nthat jurors, not judges, are entrusted with determining\\nwhether to believe the evidence presented and then apply the\\nlaw to the facts determined to be true. Where, as here, the\\nlapse as to assuring the jurors’ performance of its task is not\\npartial but complete, an after-the-fact appraisal simply\\namounts to a denial of the constitutionally guaranteed trial\\nby jury. 10\\n\\n 9\\n It is worth noting that “in a jury trial . . . a verdict . . . must be\\nrendered by the jury in open court . . . in order to become final.” Gouveia\\nv. Espinda, 926 F.3d 1102, 1115 (9th Cir. 2019) (quoting Harrison v.\\nGillespie, 640 F.3d 888, 898 (9th Cir. 2011)). This court has recognized\\nthat rendering a verdict in open court cannot be equated with writing that\\nsame verdict on a piece of paper behind closed doors and delivering the\\ndocument to the judge. Similarly, the act of reading jury instructions at\\nhome is not equivalent to hearing a judge read those instructions aloud\\nin open court.\\n 10\\n By contrast, the Court held in Neder that the omission of a single\\nelement of the charged offense from the jury instructions was not\\nstructural error, because in that circumstance, the failure “did not\\n\\n18 UNITED STATES V. BECERRA\\n\\n Third, without an oral charge, a key aspect of the trial is\\nhidden from public observation, and the solemnity of the\\noccasion for the public is fatally compromised. In this\\nrespect, the error is directly connected to denial of the right\\nto a public trial and so implicates the third Weaver\\ncategory—protection of “some other interest.” 137 S. Ct.\\nat 1908. Here, that interest is the involvement of the\\npublic—including the media—in viewing the important\\naspects of trials, including the charge to the jury.\\n\\n In short, all three of Weaver’s rationales for holding an\\nerror is structural are present here. Oral instruction as to the\\nlegal framework the jury must apply is a “basic[]\\nconstitutional guarantee[]” that must occur in all criminal\\ntrials, and failure to so instruct a jury is structural error. Id.\\nat 1907.\\n\\n D\\n\\n The third requisite of plain error review is necessarily\\nmet where the error at issue is structural. See United States\\nv. Yamashiro, 788 F.3d 1231, 1236 (9th Cir. 2015) (“a\\nfinding of structural error satisfies the third prong of the\\nOlano plain-error test” (quoting United States v. Recio,\\n371 F.3d 1093, 1101 (9th Cir. 2004))). Cf. United States v.\\nChavez-Cuevas, 862 F.3d 729, 734 (9th Cir. 2017), cert.\\ndenied, 138 S. Ct. 1179 (2018) (stating that when an error\\n“implicates a structural right, the error affects substantial\\nrights, and undermines the fairness of a criminal proceeding\\nas a whole” (citations omitted)).\\n\\n\\n\\n\\n‘vitiat[e] all of the jury’s findings.” 527 U.S. at 11 (quoting Sullivan,\\n508 U.S. at 281).\\n\\n UNITED STATES V. BECERRA 19\\n\\n The failure to instruct the jury orally in this case also\\n“seriously affect[ed] the fairness, integrity, or public\\nreputation of judicial proceedings,” satisfying the fourth\\nelement necessary to reverse under plain error review.\\nDepue, 912 F.3d at 1232. The same reasoning that justifies\\ncategorizing this error as structural supports this conclusion.\\nSee supra pp. 15–18. It is impossible to know whether the\\njury would have come to the same conclusion had the judge\\norally instructed them as to the elements of the charges.\\nSuch uncertainty undermines the fairness and integrity of\\nthese judicial proceedings. In addition, where, as here, there\\nis definitive precedent precluding the district court’s\\nconduct, the “flagrant nature of the district court’s error . . .\\nseriously affects the public reputation of judicial\\nproceedings.” United States v. Hammons, 558 F.3d 1100,\\n1105 (9th Cir. 2009) (citations omitted) (holding a district\\ncourt’s failure to state its reasoning for a sentence on the\\nrecord, as required by established Supreme Court and Ninth\\nCircuit law, to be plain error). Finally, as noted earlier,\\nassuring public awareness of the charge to the jury and\\npromoting the dignity and formality of a critical stage of the\\ncriminal trial are among the underpinnings of the oral\\ninstruction requirement. These values rest on the very same\\nconcerns for the “fairness, integrity, [and] public reputation\\nof judicial proceedings” that comprise the fourth plain error\\nfactor. Depue, 912 F.3d at 1232.\\n\\n For these reasons, we exercise our discretion to notice\\nthe plain error committed by the district court in this case.\\n\\n III\\n\\n Under Marquez, it is structural error not to instruct the\\njury orally as to the entire substantive law the jury must\\napply. Because the trial judge here delivered no such oral\\ncharge, the requisites for reversing on plain error review\\n\\n20 UNITED STATES V. BECERRA\\n\\nhave been met. We therefore reverse the conviction and\\nremand for a new trial.\\n\\n REVERSED AND REMANDED.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4440670/\", \"author_raw\": \"BERZON, Circuit Judge:\"}, {\"author\": \"GRABER, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"GRABER, Circuit Judge, dissenting:\\n\\n I respectfully dissent. The district court erred by failing\\nto read all the instructions to the jury aloud. But the error\\nwas clearly harmless in this particular case. The court gave\\nthe jury written instructions—the final versions of which\\nDefendant concedes were entirely correct—and orally\\ninstructed the jury to read those instructions. The jurors\\nconfirmed—individually and in open court—that they had in\\nfact read the written instructions, and the evidence of\\nDefendant’s guilt was overwhelming.\\n\\n Neither the majority nor Defendant refutes that analysis.\\nInstead, the majority holds that the instructional error falls\\ninto the narrow class of errors deemed “structural” and that,\\naccordingly, we may not assess harmlessness. I disagree that\\nthe error in this case is properly classified as structural.\\nAccordingly, I would hold that the error did not affect\\nDefendant’s substantial rights. Additionally, even assuming\\nthat the error affected his substantial rights, I would hold that\\nthis case does not warrant the exercise of our discretion\\nbecause the error did not seriously affect the fairness,\\nintegrity, or public reputation of the trial.\\n\\n Defendant did not object to the district court’s method of\\ninstructing the jury, so we review for plain error only.\\nUnited States v. Olano, 507 U.S. 725 (1993). “Plain error is\\n(1) error, (2) that is plain, and (3) that affects substantial\\nrights.” United States v. Depue, 912 F.3d 1227, 1232 (9th\\n\\n UNITED STATES V. BECERRA 21\\n\\nCir. 2019) (en banc) (internal quotation marks omitted). If\\nthose conditions are met, we have “the discretion to grant\\nrelief so long as the error seriously affects the fairness,\\nintegrity, or public reputation of judicial proceedings.” Id.\\n(internal quotation marks omitted). We held in Guam v.\\nMarquez, 963 F.2d 1311, 1314–15 (9th Cir. 1992), that “all\\njury instructions must be read aloud to the jury in the\\npresence of counsel and the defendant.” So the error here\\nwas plain. But the error here neither affected Defendant’s\\nsubstantial rights nor warrants discretionary relief.\\n\\nA. Substantial Rights and “Structural” Error\\n\\n The Supreme Court repeatedly has reserved the question\\nwhether a “structural” error necessarily affects a defendant’s\\nsubstantial rights. See United States v. Marcus, 560 U.S.\\n258, 263 (2010) (reserving the question and citing four\\nprevious cases that have reserved the question). The Court’s\\nrecent jurisprudence strongly suggests to the contrary:\\n\\n Despite its name, the term “structural error”\\n carries with it no talismanic significance as a\\n doctrinal matter. It means only that the\\n government is not entitled to deprive the\\n defendant of a new trial by showing that the\\n error was “harmless beyond a reasonable\\n doubt.” Chapman v. California, 386 U.S. 18,\\n 24 (1967). Thus, in the case of a structural\\n error where there is an objection at trial and\\n the issue is raised on direct appeal, the\\n defendant generally is entitled to automatic\\n reversal regardless of the error’s actual effect\\n on the outcome.\\n\\nWeaver v. Massachusetts, 137 S. Ct. 1899, 1910 (2017)\\n(emphases added) (some internal quotation marks omitted).\\n\\n22 UNITED STATES V. BECERRA\\n\\nBut even assuming that structural errors necessarily affect\\nsubstantial rights, the error here was not structural.\\n\\n “[M]ost constitutional errors can be harmless.” Arizona\\nv. Fulminante, 499 U.S. 279, 306 (1991). The Supreme\\nCourt has recognized only “a very limited class of errors” as\\n“structural.” United States v. Davila, 569 U.S. 597, 611\\n(2013) (quoting United States v. Marcus, 560 U.S. 258, 263\\n(2010)). The requirement that all jury instructions be given\\norally is not among them. We labeled the error in Marquez\\n“structural.” But the sole reason for applying that label in\\nMarquez leads necessarily to the opposite conclusion here.\\nWe held that the instructional error in Marquez was\\n“structural” for one simple reason: “the record is silent\\nregarding whether any of the jurors read the instructions that\\nwere submitted to them,” so we could not assess\\nharmlessness. 963 F.2d at 1316. 1\\n\\n Here, by contrast, the district court orally instructed the\\njury to read the written instructions, and each juror\\nconfirmed in open court that, in fact, he or she had read the\\ninstructions. The record thus establishes that the jury\\nactually received the instructions. To conclude otherwise,\\nnot only would we have to put aside our ordinary\\npresumption that jurors follow their instructions, e.g., United\\nStates v. Smith, 831 F.3d 1207, 1215 (9th Cir. 2016), but we\\nalso would have to conclude that a juror affirmatively lied to\\nthe judge in open court. Nothing in the record supports\\neither contention.\\n\\n\\n\\n 1\\n The defendant in Marquez also objected to the procedure. 963 F.2d\\nat 1313. Defendant here did not. That distinction also may matter under\\nWeaver, 137 S. Ct. at 1910.\\n\\n UNITED STATES V. BECERRA 23\\n\\n The majority acknowledges the foregoing analysis but\\nthen reasons that “we do not assess whether an error is\\nstructural on a case-by-case basis. ‘[A] constitutional error\\nis either structural or it is not.’ Neder v. United States,\\n527 U.S. 1, 14 (1999).” Maj. op. at 13. That reasoning fails\\nfor two independent reasons.\\n\\n First, it proves too much. Marquez plainly held that the\\nerror was structural in that case solely because of the silence\\nof the record. If later Supreme Court cases such as Neder\\nhave undermined that reasoning, then Marquez no longer\\ncontrols because it applied an outdated understanding of\\nwhether an error is structural. Miller v. Gammie, 335 F.3d\\n889, 899–900 (9th Cir. 2003) (en banc).\\n\\n Second, deciding whether a particular error is properly\\nlabeled “structural” entails a close look at specifics. A\\npartial failure to instruct the jury is a non-structural error\\nunless the omitted instruction pertains to the burden of proof.\\nNeder, 527 U.S. at 8–15. A failure to conduct a trial in public\\nis structural error unless the trial court makes certain factual\\nfindings. Weaver, 137 S. Ct. at 1909. A failure to conduct\\na suppression hearing in public requires a new trial unless\\nthe conclusion of a new suppression hearing is the same as\\nthe conclusion reached at the original hearing. Waller v.\\nGeorgia, 467 U.S. 39, 49–50 (1984).\\n\\n Marquez did not hold that any failure to read aloud the\\njury instructions is structural. Nor did it hold that any failure\\nto read aloud the instructions defining the offense is\\nstructural. Instead, in deciding whether the error was\\n“structural,” Marquez asked one and only one question: did\\nthe record reveal whether the jurors had read the written\\ninstructions? Only after determining that the record was\\nsilent on that question did Marquez hold that the error was\\nstructural. That approach is consistent with, for example, the\\n\\n24 UNITED STATES V. BECERRA\\n\\nSupreme Court’s approach in Waller: the error requires a\\nretrial unless other circumstances obviate the need for a new\\ntrial. Marquez thus held only that, when the record is silent\\nas to whether the jurors read the written instructions, the\\ninstructional error is properly labeled “structural.” Here, by\\ncontrast, the record is complete as to that critical inquiry and\\ndemonstrates that the jurors did, in fact, read the written\\ninstructions. Marquez therefore does not control.\\n\\n The majority next sets aside Marquez and provides its\\nown reasons for concluding that the instructional error here\\nis properly labeled “structural.” Maj. op. at 15–18. None of\\nthe reasons is persuasive. Because the court orally instructed\\nthe jurors to read the written instructions and later put all\\njurors on the spot to confirm that they had, in fact, read the\\ninstructions, the proceedings were just as solemn as those in\\nwhich a court reads all the instructions aloud. (The court\\nread some of the instructions aloud.) The jury applied the\\ncorrect law, as all the instructions were correct. Many\\npeople absorb information better in writing. Moreover, there\\nis no way to know whether jurors are listening when oral\\ninstructions are given; some may be daydreaming or\\nworrying about a sick relative, for example. Indeed, we\\nknow more in this case about the jurors’ attentiveness than\\nwe know in most cases. Though instructions can sometimes\\nbe difficult to follow, the written instructions in this case\\nwere not. Nor were they especially numerous. Finally, the\\nwritten instructions are part of the public record, so the\\nproceedings were fully public.\\n\\n I would hold that the error here was not “structural.”\\nBecause the jury plainly received all the instructions,\\nbecause the instructions were correct, because there were no\\nother errors in the trial, and because the evidence of guilt was\\noverwhelming, I would hold that the error of not reading all\\n\\n UNITED STATES V. BECERRA 25\\n\\nthe instructions aloud did not affect Defendant’s substantial\\nrights.\\n\\nB. Our Discretion\\n\\n Even if the error here is properly labeled “structural,” we\\nstill must decide whether to exercise our discretion to order\\na new trial. In Johnson v. United States, 520 U.S. 461, 468–\\n69 (1997), the defendant argued that an error affected her\\nsubstantial rights because the error was “structural.” The\\nSupreme Court expressly declined to decide whether the\\nerror was structural because, even if the error were\\nstructural, “it [would] not meet the final requirement of\\nOlano.” Id. at 469. It was clear that the error did not affect\\nthe jury’s verdict, so there was “no basis for concluding that\\nthe error seriously affected the fairness, integrity or public\\nreputation of judicial proceedings.” Id. at 470 (internal\\nquotation marks and brackets omitted); see United States v.\\nCotton, 535 U.S. 625, 632–33 (2002) (applying the same\\nmethodology of declining to decide whether an error was\\nstructural because the error did not meet the fourth prong of\\nplain-error review); see also United States v. Promise,\\n255 F.3d 150, 161 (4th Cir. 2001) (en banc) (holding that,\\nunder Johnson, a reviewing court may decline, under the\\nfourth prong of plain-error review, to reverse even a\\nstructural error).\\n\\n The same reasoning applies here. Even if the\\ninstructional error here is properly labeled “structural,” the\\nerror did not seriously affect the fairness, integrity, or public\\nreputation of judicial proceedings because it had no\\nconceivable effect on the jury’s verdict. Accordingly, I\\nwould affirm the judgment.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4440670/\", \"author_raw\": \"GRABER, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"SUSAN P GRABER"},"judge2":{"kind":"string","value":"MARSHA S BERZON"},"judge3":{"kind":"string","value":"EDUARDO C ROBRENO"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":1,"string":"1"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4663417/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Cesar Becerra\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-23\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF AMERICA, No. 17-30050\n Plaintiff-Appellee,\n D.C. No.\n v. 3:14-cr-00227-MO-1\n\n CESAR ANTONIO BECERRA,\n Defendant-Appellant. OPINION\n\n Appeal from the United States District Court\n for the District of Oregon\n Michael W. Mosman, Chief District Judge, Presiding\n\n Argued and Submitted March 7, 2019\n Portland, Oregon\n\n Filed September 23, 2019\n\n Before: Susan P. Graber and Marsha S. Berzon, Circuit\n Judges, and Eduardo C. Robreno, * District Judge.\n\n Opinion by Judge Berzon;\n Dissent by Judge Graber\n\n\n\n\n *\n The Honorable Eduardo C. Robreno, United States District Judge\nfor the Eastern District of Pennsylvania, sitting by designation.\n\n2 UNITED STATES V. BECERRA\n\n SUMMARY **\n\n\n Criminal Law\n\n Reversing a conviction and remanding for a new trial,\nthe panel held that it is bound by the holdings in Guam v.\nMarquez, 963 F.2d 1311 (9th Cir. 1992), that a trial court\ndoes not satisfy its duty to instruct jurors in a criminal case\njust by providing jurors with a set of written instructions to\nuse during deliberations, and that when a trial court abdicates\nits responsibility to charge the jury orally as to the elements\nof the charged crimes, it commits structural error.\n\n The panel held that because the trial judge in this case\ndelivered no such oral charge, the requisites for reversing on\nplain error review have been met.\n\n Dissenting, Judge Graber wrote that the error was\nharmless in this case in which the court gave the jury written\ninstructions, the final versions of which defendant concedes\nwere correct; the court orally instructed the jury to read those\ninstructions; the jurors confirmed that they had read the\nwritten instructions; and the evidence of guilt was\noverwhelming.\n\n\n\n\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\n UNITED STATES V. BECERRA 3\n\n COUNSEL\n\nMichael R. Levine (argued), Levine & McHenry LLC,\nPortland, Oregon, for Defendant-Appellant.\n\nThomas S. Ratcliffe (argued), Assistant United States\nAttorney; Kelly A. Zusman, Appellate Chief; Billy J.\nWilliams, United States Attorney; United States Attorney’s\nOffice, Portland, Oregon; for Plaintiff-Appellee.\n\n\n OPINION\n\nBERZON, Circuit Judge:\n\n Our circuit held nearly thirty years ago that oral\ninstructions to the jury as to the law they must apply are an\nessential feature of a jury trial. Guam v. Marquez, 963 F.2d\n1311, 1314–15 (9th Cir. 1992). A trial court does not satisfy\nits duty to instruct jurors in a criminal case just by providing\nthose jurors with a set of written instructions to use during\ndeliberations. Id. We further determined that when a trial\ncourt abdicates its responsibility to charge the jury orally as\nto the elements of the charged crimes, it commits structural\nerror. Id. at 1315–16. We are bound by those holdings and\nso reverse the conviction in this case.\n\n I\n\n In February 2016, Cesar Becerra was tried on six counts\nfor crimes related to the possession and distribution of heroin\nand methamphetamine. 1 During the final pretrial\n\n 1\n Specifically, Becerra proceeded to trial on the following charges:\n(1) possession with intent to distribute heroin in June 2014;\n\n4 UNITED STATES V. BECERRA\n\nconference, the district court told the parties that it would\nprovide the jurors with written copies of the jury instructions\nat the beginning of the trial. The court explained that it\nwould confirm with the jurors at some point during the trial\nthat they had in fact read the provided instructions. So long\nas the instructions were not subsequently changed, the court\nsaid, it would not read the instructions aloud to the jurors.\nNeither party objected to this planned course of action.\n\n The district court implemented its plan largely as\nannounced. On the morning of the first day of trial, each\njuror was provided a set of draft jury instructions. These\ninstructions, which largely followed our circuit’s model jury\ninstructions, included explanations of the substantive\noffenses and definitions of key terms, such as “reasonable\ndoubt,” “possession,” and “knowingly.” See Model Crim.\nJury Instr. 9th Cir. §§ 1.5, 1.7, 1.8, 3.1–3.2, 3.5–3.9, 3.11,\n3.14–3.15, 3.18, 4.1, 4.8–4.9, 4.14, 4.17, 5.7, 6.10, 7.1, 7.3–\n7.6, 8.72, 9.15–9.16, 9.18 (2010). The court told the jurors\nto read the provided instructions: “I’m not going to give you\na quiz on” the instructions, the court said, “but you will be\nasked if you read it. So please read it tonight.”\n\n When it gave them the written instructions, the court read\naloud to the jurors a few preliminary instructions, which, as\nthe court explained, were “geared to . . . telling you a little\nbit about your job as jurors.” These instructions included,\nfor example, an explanation of the jurors’ duty to deliberate,\na brief, non-technical explanation of the charges being tried,\n\n(2) possession with intent to distribute heroin in February 2014;\n(3) possession of a 9 mm caliber firearm in furtherance of a drug-\ntrafficking crime in February 2014; (4) possession of a .22 caliber\nfirearm in furtherance of a drug-trafficking crime in February 2014;\n(5) possession with intent to distribute heroin in December 2012; and\n(6) distribution of heroin in December 2011.\n\n UNITED STATES V. BECERRA 5\n\nand an explanation of what is (and what is not) evidence.\nThese preliminary oral instructions did not include any\nexplanation of the elements of the three crimes charged in\nthe six counts, or otherwise guide the jurors as to the\nsubstantive law they were expected to apply. After a recess,\nthe trial commenced with the parties’ opening statements.\n\n At the close of evidence on the next trial day, the district\ncourt retrieved the draft jury instructions from those jurors\nwho had brought the instructions back to the courthouse and\nprovided each juror with a set of final instructions to use\nduring deliberations. The court then asked Juror No. 1 in\nopen court: “[H]ave you read each and every one of [the\ndraft] instructions . . . ?” Juror No. 1 said, “Yes.” The court\ncontinued: “Two?”, “Three?”, and so on through “Twelve?”\nand “Our alternate?” Each juror, in turn, responded: “Yes.”\nNo further follow-up was conducted by either the court or\nthe parties to assess whether the jurors had fully read and\nunderstood the draft instructions they had been provided.\n\n Between the draft and final instructions, one instruction\nwas added and two were modified. Specifically, the court\n(1) added an instruction explaining how the jurors should\ntreat evidence of acts not charged; (2) added a sentence to\nthe instruction explaining how jurors should evaluate the\nevidence of a cooperating witness; and (3) removed a\nsentence in an instruction on the lesser-included offense of\npossession of a controlled substance. The court notified the\njurors of these changes and read the full text of the three new\nand modified instructions aloud. The district court did not\nafter the close of evidence read aloud any of the remaining\ntwenty-seven instructions, or otherwise orally instruct the\njurors as to the substantive law.\n\n6 UNITED STATES V. BECERRA\n\n The parties then delivered closing arguments to the\njurors. The next morning, the jurors returned to deliberate.\nThey reached a guilty verdict on all six counts that same day.\n\n In March 2017, the district court sentenced Becerra to\n60 months of incarceration. Becerra timely appealed.\n\n II\n\n Becerra’s principal argument on appeal is that the district\ncourt erred by not reading the jury instructions aloud to the\njury. 2 Becerra did not object in the district court to the plan\nto provide primarily written instructions or to the\nimplementation of that plan. We therefore review the failure\nto provide an oral jury charge for plain error. United States\nv. Depue, 912 F.3d 1227, 1233 (9th Cir. 2019) (en banc).\nUnder plain error review, we may reverse a district court’s\nruling only if (1) there was error, (2) the error was plain,\n(3) the error affected substantial rights, and (4) the error\nseriously affected the fairness, integrity, or public reputation\nof judicial proceedings. Id. at 1232.\n\n A\n\n The first two requirements are clearly met. We\ndisapproved an essentially similar trial procedure in\nMarquez. The trial court in Marquez, like the district court\nhere, never orally instructed the jurors as to the charged\ncrimes. 963 F.2d at 1312. Instead, the jurors in Marquez\nwere provided, after closing arguments, with a set of written\njury instructions that included “the elements of the crimes”\n\n 2\n Becerra also appeals the district court’s denial of his motion to\nsuppress. We affirm the district court’s decision to deny the motion to\nsuppress in a memorandum disposition filed contemporaneously with\nthis opinion.\n\n UNITED STATES V. BECERRA 7\n\nbeing tried and the definitions for terms “mentioned in the\ndescription[s] of the offense[s] . . . .” Id. at 1312–13. Before\nsending the jurors to deliberate, the trial court in Marquez\nadvised the jurors that it had provided them with written jury\ninstructions. It then told the jurors: “You will have [the\ninstructions] with you, so there is no need of reading it to\nyou.” Id. at 1313.\n\n Marquez held that it was error for the trial court not “to\ninstruct the jury on the elements of the [charged] offense\nbefore submitting [the] matter to the jury.” Id. at 1314. Just\nproviding jurors with written instructions delineating the\nelements of the charged offenses was not enough. 3 Id.\nat 1315–16. Relying on the Third Circuit’s decision in\nUnited States v. Noble, 155 F.2d 315 (3d Cir. 1946),\nMarquez reasoned that an oral jury charge is necessary to\nensure that “each member of the jury has actually received\nthe instructions.” 4 963 F.2d at 1314 (quoting Noble,\n155 F.2d at 318).\n\n\n\n 3\n Marquez at one point says that “all jury instructions must be read\naloud to the jury in the presence of counsel and the defendant.” 963 F.2d\nat 1314–15 (emphasis added). This summary may overstate the holding\nof the case. Elsewhere in the opinion, Marquez states that the trial court\nerred by not reading aloud “instructions defining the offense charged.”\nId. at 1314; see also id. at 1315. The difference does not matter here.\nThe trial court here did not read aloud any of the offense-defining\ninstructions nor most of the other instructions.\n 4\n Marquez and Noble further reasoned that oral instructions are\nnecessary because “counsel and the defendant [are] entitled to hear the\ninstructions in order that they may, if they are incorrect, object to them\nand secure their prompt correction by the trial judge.” Id. at 314 (quoting\nNoble, 155 F.2d at 318). This secondary rationale lacks persuasive force.\nAs long as jury instructions are provided in written form to the parties\n\n8 UNITED STATES V. BECERRA\n\n Marquez’s holding that an oral charge is a necessary\nfeature of our criminal trial process reflects the critical\nimportance of communicating effectively to jurors in detail\nthe legal principles governing their deliberations. Jurors in\nour criminal justice system are delegated the awesome\nresponsibility of determining the innocence or guilt of a\ndefendant put before them. A determination of guilt can, of\ncourse, severely restrict a defendant’s physical liberty for\nyears or decades. And the jury’s decision will generate a\ncascade of other consequences: A citizen found guilty often\nis unable to participate in our democratic system by voting,\nsee, e.g., Wash. Const. art. VI, § 3; Or. Rev. Stat.\n§ 137.281(3)(d); a non-citizen may lose her ability to remain\nin the country, see, e.g., Martinez v. Mukasey, 551 F.3d 113,\n118 n.3 (9th Cir. 2008).\n\n Because jurors are assigned such a critical role in our\ncriminal justice system, “[i]t is essential to the\nadministration of justice that a jury scrupulously follow the\nlaw as given to it by the judge, and to that end his instructions\nshould be clear and firmly fixed in the mind of each juror.”\nBabson v. United States, 330 F.2d 662, 666 (9th Cir. 1964).\nSince before the founding of our Republic, courts have\n\nsufficiently in advance, objections can be made well before instructions\nare distributed to the jurors.\n\n Federal Rule of Criminal Procedure 30 has long required that trial\ncourts provide the parties with an opportunity to make specific\nobjections to the jury instructions; that opportunity must take place “out\nof the jury’s hearing and, on request, out of the jury’s presence.” Fed.\nR. Crim. P. 30(d). In practice, district courts comply with this rule by\nproviding the parties an opportunity to review and to object to the\nplanned instructions before they are read to the jury. 2A Fed. Prac. &\nProc. Crim. § 484 (4th ed.); see also United States v. Loya, 807 F.2d\n1483, 1492 (9th Cir. 1987); Las Vegas Merchant Plumbers Ass’n v.\nUnited States, 210 F.2d 732, 744 (9th Cir. 1954).\n\n UNITED STATES V. BECERRA 9\n\nuniversally met the need to educate jurors by orally advising\njurors “in the presence of the parties, the counsel, and all\nothers . . . in matters of law arising upon th[e] evidence.”\n3 William Blackstone, Commentaries *375; see also United\nStates v. Robinson, 724 F.3d 878, 887 (7th Cir. 2013); Noble,\n155 F.2d at 317 n.1 (quoting Thomas M. Cooley,\nConstitutional Limitations *321 (1st ed. 1868)).\n\n There are excellent reasons this feature of our trial\nprocess endures. For one, many jurors may not adequately\ncomprehend written instructions. It is no secret that jury\ninstructions are often written in language more suitable for\nlawyers than laypersons. See, e.g., Jonathan Barnes,\nTailored Jury Instructions: Writing Instructions that Match\na Specific Jury’s Reading Level, 87 Miss. L.J. 193, 195\n(2018); Prentice H. Marshall et al., Pattern Criminal Jury\nInstructions: Report of the Federal Judicial Center\nCommittee to Study Jury Instructions, at vii, 79–83 (1982);\nPhil H. Cook, Instructionese: Legalistic Lingo of Contrived\nConfusion, 7 J. Mo. B. 113 (1951). Written instructions can\nbe especially impenetrable for those jurors with limited\nreading comprehension skills. 5 See Laurence J. Severance\net. al., Toward Criminal Jury Instructions that Jurors Can\nUnderstand, 75 J. Crim. L. & Criminology 198, 224 (1984);\nRobert P. Charrow & Veda R. Charrow, Making Legal\n\n 5\n This group of jurors is not insignificant. Fourteen percent of\nAmerican adults have less than basic prose literacy; these adults range\nfrom the nonliterate to those with the ability to “locat[e] easily\nidentifiable information in short, commonplace prose texts.” Nat’l Ctr.\nfor Education Statistics, A First Look at the Literacy of America’s Adults\nin the 21st Century 2–4 (2006). Another 29 percent have only basic\nprose literacy—in other words, can “read[] and understand[] information\nin short, commonplace prose texts.” Id. at 3. Only 13 percent of\nAmerican adults have the skills necessary to “read[] lengthy, complex,\nabstract prose texts.” Id.\n\n10 UNITED STATES V. BECERRA\n\nLanguage Understandable: A Psycholinguistic Study of Jury\nInstructions, 79 Colum. L. Rev. 1306, 1320–21 (1979). And\neven if a jury is comprised of an unusually educated cross-\nsection of the community, many of us at times succumb to\nthe temptation to glaze over a long paragraph of text or flip\nover a few pages of a lengthy stack of papers. When the\ninstructions are read orally, tonal inflection can make the\ncontent of the instructions more accessible, as well as\ndiscourage the “tuning out” common when reading dense\nmaterial. Oral instruction in the formal courtroom setting\nthus assures that jurors are exposed to the substance of the\nessential instructions by at least one sensual route.\n\n The oral charge also performs a second, signaling\nfunction that cannot be replaced by a printout or a pamphlet.\nJury instructions are not the judicial equivalent of a car\nmanual or a cookbook. When an enrobed judge orally\ncharges the jury, the jurors are impressed with the fact that\nthey have been entrusted with the power to decide the\ndefendant’s fate. This oral, public ritual helps ensure that\n“jurors . . . recognize the enormity of their task and . . . take\n[that task] seriously.” Nancy S. Marder, Bringing Jury\nInstructions into the Twenty-First Century, 81 Notre Dame\nL. Rev. 449, 465 (2006). By analogy, reading a sermon is\nnot the same as hearing it read in church or synagogue by a\npastor or priest or rabbi. If it were, religious leaders would\njust hand out the sermons and end the services early.\n\n For these reasons, the historic practice of oral jury\ninstruction remains central to the fairness of jury trials. That\nconclusion does not mean that procedures for instructing\njuries have remained static—or should. Additions to oral\ninstructions have enhanced the likelihood that jury\ninstructions will effectively communicate to jurors the legal\nprinciples governing their critical task. See id. at 475–82.\n\n UNITED STATES V. BECERRA 11\n\nFor example, pattern jury instructions, now routinely\npromulgated and updated, originated in the early 20th\ncentury and became widely used in the 1960s. 6 See Robert\nG. Nieland, Assessing the Impact of Pattern Jury\nInstructions, 62 Judicature 185, 185–87 (1978). Also,\nalthough the use of written jury instructions was once a\nrarity, courts now often supplement oral jury instructions\nwith written ones, giving them to jurors to read\ncontemporaneously with the oral instructions or to take to\nthe jury room after the oral charge. See Cal. Penal Code\n§§ 1093(f), 1137 (providing jurors with a right to request\nwritten instructions); Ninth Circuit Jury Instruction\nCommittee, Manual of Model Criminal Jury Instructions\n§ 3.1 (2010) (“A copy of these instructions will be available\nin the jury room for you to consult.”); see also William W.\nSchwarzer, Communicating with Juries: Problems and\nRemedies, 69 Calif. L. Rev. 731, 756–57 (1981). Written\ninstructions are mandatory in some jurisdictions. See, e.g.,\nOr. Rev. Stat. § 136.330 (1); Or. R. Civ. P. 59(B); Wash.\nSup. Ct. Civ. R. 51(h). We have no doubt that there is room\nfor more useful innovation as to both how jury instructions\nare drafted and how they are communicated to the jurors. 7\n 6\n As another example, Federal Rule of Criminal Procedure 30 was\nmodified in 1987 to allow district courts to charge the jury either before\nor after closing arguments. See Fed. R. Crim. P. 30 Advisory\nCommittee’s Note to 1987 Amendment.\n 7\n Scholars, judges, and lawyers have long recognized that jurors far\ntoo often decide cases without an adequate understanding of the law they\nare required to apply. See, e.g., United States v. Cohen, 145 F.3d 82, 93\n(2d Cir. 1942) (Hand, J.); Nancy S. Marder, Bringing Jury Instructions\ninto the Twenty-First Century, 81 Notre Dame L. Rev. 449, 454–58\n(2006); Schwarzer, Communicating with Juries: Problems and\nRemedies, supra; David U. Strawn & Raymond W. Buchanan, Jury\nConfusion: A Threat to Justice, 59 Judicature 478, 480–81 (1976); Wylie\nA Aitken, Comment: The Jury Instruction Process—Apathy or\n\n12 UNITED STATES V. BECERRA\n\nBut even as the exact form of a trial court’s jury charge has\nevolved, there has always been a bedrock recognition that\nthe trial court must orally charge the jury before\ndeliberations commence.\n\n Notably, the government in this case does not contend\notherwise. It recognizes that, as Marquez makes clear, the\ndistrict court in this case erred by not reading the essential\njury instructions aloud. Rather, the government’s central\ncontention is that Marquez is not here binding as to its\nsecond holding—that the failure of the district court to read\njury instructions aloud to the jurors in open court is structural\nerror and so not subject to harmless error analysis. We turn\nto that contention.\n\n B\n\n Contrary to the government’s submission, Marquez is\nbinding on us not only with regard to its substantive holding\nas to the necessity of oral jury instructions but also as to its\nsecond holding—that the district court committed structural\nerror by failing to read an oral charge to the jurors.\n\n Marquez’s conclusion that the omission of an oral charge\nis structural error rests primarily on its observation that an\nappellate court cannot meaningfully assess whether failure\nto provide oral instructions impacted “the jury’s\nperformance of its duties” in a particular trial. Id.at 1315–\n16. In Marquez, “the record [was] silent regarding whether\nany of the jurors read the instructions that were submitted to\nthem.” Id. at 1316. Here, there was an attempt to ascertain\n\nAggressive Reform, 49 Marquette L. Rev. 137, 137 n.2 (1965); Robert\nWinslow, The Instruction Ritual, 13 Hastings L. J. 456, 469–70 (1962).\n\n UNITED STATES V. BECERRA 13\n\nthat the jurors read the instructions provided to them. 8 But\nwe do not assess whether an error is structural on a case-by-\ncase basis. “[A] constitutional error is either structural or it\nis not.” Neder v. United States, 527 U.S. 1, 14 (1999). “An\nerror can count as structural even if the error does not lead\nto fundamental unfairness in every case.” Weaver v.\nMassachusetts, ___ U.S. ___, 137 S. Ct. 1899, 1908 (2017).\n\n The dissent takes issue with this recent Supreme Court\npronouncement, arguing that “deciding whether a particular\nerror is properly labeled ‘structural’ entails a close look at\nspecifics.” Of course, we must determine on a case-by-case\nbasis whether there was an error, and, if so, whether that kind\nof error is structural. Failure to conduct a trial in public\nabsent any factual findings is error, Waller v. Georgia,\n467 U.S. 39, 45–46 (1984), and structural, see id. at 49–50;\nconducting a trial or hearing after making adequate factual\nfindings is not error at all. Id. at 45. Omission of a single\nelement of the charged offense from the jury instructions is\nerror, but not structural error, Neder, 527 U.S. at 8–11;\nomission of the burden of proof from those instructions is\nerror, and structural, see id. at 11. And in some instances\nwhere a structural error has occurred, the relief required to\ncure that error may not result in a new trial for the defendant.\nWaller, 467 U.S. at 49–50. But none of these caveats means\n\n 8\n We note that the trial judge’s questioning of the jurors was\nperfunctory, and the jurors were not placed under oath. Moreover, the\njurors’ “yes” answers do not establish that they read the instructions\ncarefully enough to comprehend their essentials. A simple “yes” also\ndoes not answer: Did the juror read the instruction alone or with one or\nmore persons? Did the juror read the instructions in one or more sittings?\nDid the juror consult dictionaries or other legal sources to help him or\nher understand any terms? Did the juror discuss the instructions with\nother jurors or other persons? Did the juror read the instructions while\nengaged in other activities such as watching television?\n\n14 UNITED STATES V. BECERRA\n\nthat once we identify an error that is structural in kind—here,\nfailure to instruct the jury orally—we reconsider whether\nthat error should be deemed structural in the specific case\nbefore us.\n\n Of course, there may be some cases where it is hard to\ndiscern whether the trial court acted in a manner that we have\nalready deemed structural error, or whether the trial court\ncommitted error that is related but distinct in kind. Cf.\nJohnson v. United States, 520 U.S. 461, 469 (1997). This is\nnot that case. The error held structural in Marquez was the\nfailure of the judge orally “to read the elements of the crime\nto the jury,” 963 F.3d at 1315 (capitalization modified); it\nwas not the failure to ascertain whether the jury read written\ninstructions provided to it in lieu of oral instruction.\n\n Thus, under Marquez, the failure to instruct the jury\norally was structural error absent some intervening higher\nlegal authority “clearly irreconcilable” with Marquez.\nGammie, 335 F.3d at 900; see also United States v.\nXinidakis, 598 F.3d 1213, 1216 (9th Cir. 2010). There is no\nsuch authority.\n\n No en banc case or Supreme Court case has held that the\nfailure to instruct the jury orally is not structural error. And\nthe overall reach of the structural error doctrine has remained\nlargely the same since Marquez was decided in 1992. Then\nand now, “[t]he purpose of the structural error doctrine [has\nbeen] to ensure insistence on certain basic, constitutional\nguarantees that should define the framework of any criminal\ntrial.” Weaver, 137 S. Ct. at 1907. The “defining feature”\nof such error, is that it “‘affect[s] the framework within\nwhich the trial proceeds,’ rather than being ‘simply an error\nin the trial process itself.’” Id. (quoting Arizona v.\nFulminante, 499 U.S. 306, 310 (1991)) (alteration in\n\n UNITED STATES V. BECERRA 15\n\noriginal). Marquez cited Fulminante. See 963 F.2d at 1315–\n16.\n\n Marquez’s reasoning is not irreconcilable with later case\nlaw either. One of Marquez’s central premises for its\nstructural error holding—that the failure to provide any oral\ninstructions to the jurors is an error that as a practical matter\n“precludes a harmless error analysis,” id. at 1316—is fully\ncompatible with post-Fulminante case law. The Supreme\nCourt in Weaver recently explained that a structural error\napproach is appropriate for cases in which “the effects of the\nerror are simply too hard to measure,” making harmless error\nreview futile. 137 S. Ct. at 1908.\n\n In sum, neither Marquez’s holding nor its reasoning is at\nodds with now controlling structural error precedents. We\ntherefore remain bound by Marquez. The virtually complete\nfailure to instruct the jurors orally was structural error.\n\n C\n\n Even if we were not bound by Marquez, we would\nnonetheless conclude that it is appropriate to categorize the\nfailure to charge jurors orally as structural error.\n\n As the Court explained recently in Weaver, an error is\nusually deemed structural for at least one of three broad\nreasons, although “[i]n a particular case, more than one of\nthese rationales may be part of the explanation for why an\nerror is deemed to be structural.” Id. at 1908. First, an error\nis structural if it “deprive[s] defendants of ‘basic protections’\nwithout which ‘a criminal trial cannot reliably serve its\nfunction as a vehicle for determination of guilt or\ninnocence,” Neder, 527 U.S. at 8–9 (quoting Rose v. Clark,\n478 U.S. 570, 577–78 (1986)); see also Weaver, 137 S. Ct.\nat 1908. Second, errors have been found structural where\n\n16 UNITED STATES V. BECERRA\n\nthe effect of those errors are “necessarily unquantifiable and\nindeterminate,” making a harmless error analysis\nimpossible. Neder, 527 U.S. at 11 (quoting Sullivan v.\nLouisiana, 508 U.S. 275, 282 (1993)); see also Weaver,\n137 S. Ct. at 1908. Finally, certain errors have been\nconsidered structural where the “right at issue is not\ndesigned to protect the defendant from erroneous conviction\nbut instead protects some other interest.” Weaver, 137 S. Ct.\nat 1908; see also McKaskle v. Wiggins, 465 U.S. 168, 177,\nn.8 (1984). Each of these rationales is implicated by the\nfailure to instruct the jury orally.\n\n First, for the reasons discussed earlier, assuring that\njurors are generally aware of the law to be applied is a\nprotection without which a criminal trial cannot reliably\nserve its function. When a trial court does not provide the\njurors with an oral charge, there has not “simply [been] an\nerror in the trial process.” Weaver, 137 S. Ct. at 1907\n(quoting Fulminante, 499 U.S. at 310). The oral charge\nserves both to ensure that jurors are aware of the correct law\nand to instill in the jurors proper sense of respect for the\njury’s role in the criminal justice process. See supra at 8–\n12. Without an oral jury charge, the court has omitted a\nfundamental and ubiquitous feature of the criminal trial\nframework—the equivalent of holding no voir dire before\nselecting a jury, or holding the trial outside of public view.\nSee Waller, 467 U.S. at 49 n.9. Moreover, just as presidents\ntake the oath of office in public rather than by signing in\nprivate a document containing the oath, so as to convey that\nthe president’s duty is of profound importance, the oral\ndelivery of jury instructions in open court, by a judge\nwearing a robe, sitting before the prosecution, defendants,\nthe jury, and the courtroom audience, conveys to the jurors\nthat the jury’s responsibility is of profound importance, as it\n\n UNITED STATES V. BECERRA 17\n\nindeed is. 9 That recognition as well is essential to the\nfunctioning of the jury system.\n\n Second, the impact on the jurors’ verdict of a failure to\ninstruct jurors orally is “necessarily unquantifiable and\nindeterminate.” Neder, 527 U.S. at 11 (quoting Sullivan, 508\nU.S. at 282). Because the court’s failure to instruct\nimplicates “all of the jury’s findings,” Sullivan, 508 U.S.\nat 281, whether the jurors would have ruled the same way\nhad they been orally instructed cannot meaningfully be\ndetermined after the fact. To assess harmless error in this\ncircumstance, a “reviewing court can only engage in pure\nspeculation—its view of what a reasonable jury would have\ndone.” Id. Even where the evidence of guilt is\noverwhelming, the entire premise of the jury trial system is\nthat jurors, not judges, are entrusted with determining\nwhether to believe the evidence presented and then apply the\nlaw to the facts determined to be true. Where, as here, the\nlapse as to assuring the jurors’ performance of its task is not\npartial but complete, an after-the-fact appraisal simply\namounts to a denial of the constitutionally guaranteed trial\nby jury. 10\n\n 9\n It is worth noting that “in a jury trial . . . a verdict . . . must be\nrendered by the jury in open court . . . in order to become final.” Gouveia\nv. Espinda, 926 F.3d 1102, 1115 (9th Cir. 2019) (quoting Harrison v.\nGillespie, 640 F.3d 888, 898 (9th Cir. 2011)). This court has recognized\nthat rendering a verdict in open court cannot be equated with writing that\nsame verdict on a piece of paper behind closed doors and delivering the\ndocument to the judge. Similarly, the act of reading jury instructions at\nhome is not equivalent to hearing a judge read those instructions aloud\nin open court.\n 10\n By contrast, the Court held in Neder that the omission of a single\nelement of the charged offense from the jury instructions was not\nstructural error, because in that circumstance, the failure “did not\n\n18 UNITED STATES V. BECERRA\n\n Third, without an oral charge, a key aspect of the trial is\nhidden from public observation, and the solemnity of the\noccasion for the public is fatally compromised. In this\nrespect, the error is directly connected to denial of the right\nto a public trial and so implicates the third Weaver\ncategory—protection of “some other interest.” 137 S. Ct.\nat 1908. Here, that interest is the involvement of the\npublic—including the media—in viewing the important\naspects of trials, including the charge to the jury.\n\n In short, all three of Weaver’s rationales for holding an\nerror is structural are present here. Oral instruction as to the\nlegal framework the jury must apply is a “basic[]\nconstitutional guarantee[]” that must occur in all criminal\ntrials, and failure to so instruct a jury is structural error. Id.\nat 1907.\n\n D\n\n The third requisite of plain error review is necessarily\nmet where the error at issue is structural. See United States\nv. Yamashiro, 788 F.3d 1231, 1236 (9th Cir. 2015) (“a\nfinding of structural error satisfies the third prong of the\nOlano plain-error test” (quoting United States v. Recio,\n371 F.3d 1093, 1101 (9th Cir. 2004))). Cf. United States v.\nChavez-Cuevas, 862 F.3d 729, 734 (9th Cir. 2017), cert.\ndenied, 138 S. Ct. 1179 (2018) (stating that when an error\n“implicates a structural right, the error affects substantial\nrights, and undermines the fairness of a criminal proceeding\nas a whole” (citations omitted)).\n\n\n\n\n‘vitiat[e] all of the jury’s findings.” 527 U.S. at 11 (quoting Sullivan,\n508 U.S. at 281).\n\n UNITED STATES V. BECERRA 19\n\n The failure to instruct the jury orally in this case also\n“seriously affect[ed] the fairness, integrity, or public\nreputation of judicial proceedings,” satisfying the fourth\nelement necessary to reverse under plain error review.\nDepue, 912 F.3d at 1232. The same reasoning that justifies\ncategorizing this error as structural supports this conclusion.\nSee supra pp. 15–18. It is impossible to know whether the\njury would have come to the same conclusion had the judge\norally instructed them as to the elements of the charges.\nSuch uncertainty undermines the fairness and integrity of\nthese judicial proceedings. In addition, where, as here, there\nis definitive precedent precluding the district court’s\nconduct, the “flagrant nature of the district court’s error . . .\nseriously affects the public reputation of judicial\nproceedings.” United States v. Hammons, 558 F.3d 1100,\n1105 (9th Cir. 2009) (citations omitted) (holding a district\ncourt’s failure to state its reasoning for a sentence on the\nrecord, as required by established Supreme Court and Ninth\nCircuit law, to be plain error). Finally, as noted earlier,\nassuring public awareness of the charge to the jury and\npromoting the dignity and formality of a critical stage of the\ncriminal trial are among the underpinnings of the oral\ninstruction requirement. These values rest on the very same\nconcerns for the “fairness, integrity, [and] public reputation\nof judicial proceedings” that comprise the fourth plain error\nfactor. Depue, 912 F.3d at 1232.\n\n For these reasons, we exercise our discretion to notice\nthe plain error committed by the district court in this case.\n\n III\n\n Under Marquez, it is structural error not to instruct the\njury orally as to the entire substantive law the jury must\napply. Because the trial judge here delivered no such oral\ncharge, the requisites for reversing on plain error review\n\n20 UNITED STATES V. BECERRA\n\nhave been met. We therefore reverse the conviction and\nremand for a new trial.\n\n REVERSED AND REMANDED.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Cesar Becerra\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-23\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\n UNITED STATES OF AMERICA, No. 17-30050\\n Plaintiff-Appellee,\\n D.C. No.\\n v. 3:14-cr-00227-MO-1\\n\\n CESAR ANTONIO BECERRA,\\n Defendant-Appellant. OPINION\\n\\n Appeal from the United States District Court\\n for the District of Oregon\\n Michael W. Mosman, Chief District Judge, Presiding\\n\\n Argued and Submitted March 7, 2019\\n Portland, Oregon\\n\\n Filed September 23, 2019\\n\\n Before: Susan P. Graber and Marsha S. Berzon, Circuit\\n Judges, and Eduardo C. Robreno, * District Judge.\\n\\n Opinion by Judge Berzon;\\n Dissent by Judge Graber\\n\\n\\n\\n\\n *\\n The Honorable Eduardo C. Robreno, United States District Judge\\nfor the Eastern District of Pennsylvania, sitting by designation.\\n\\n2 UNITED STATES V. BECERRA\\n\\n SUMMARY **\\n\\n\\n Criminal Law\\n\\n Reversing a conviction and remanding for a new trial,\\nthe panel held that it is bound by the holdings in Guam v.\\nMarquez, 963 F.2d 1311 (9th Cir. 1992), that a trial court\\ndoes not satisfy its duty to instruct jurors in a criminal case\\njust by providing jurors with a set of written instructions to\\nuse during deliberations, and that when a trial court abdicates\\nits responsibility to charge the jury orally as to the elements\\nof the charged crimes, it commits structural error.\\n\\n The panel held that because the trial judge in this case\\ndelivered no such oral charge, the requisites for reversing on\\nplain error review have been met.\\n\\n Dissenting, Judge Graber wrote that the error was\\nharmless in this case in which the court gave the jury written\\ninstructions, the final versions of which defendant concedes\\nwere correct; the court orally instructed the jury to read those\\ninstructions; the jurors confirmed that they had read the\\nwritten instructions; and the evidence of guilt was\\noverwhelming.\\n\\n\\n\\n\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\n UNITED STATES V. BECERRA 3\\n\\n COUNSEL\\n\\nMichael R. Levine (argued), Levine & McHenry LLC,\\nPortland, Oregon, for Defendant-Appellant.\\n\\nThomas S. Ratcliffe (argued), Assistant United States\\nAttorney; Kelly A. Zusman, Appellate Chief; Billy J.\\nWilliams, United States Attorney; United States Attorney’s\\nOffice, Portland, Oregon; for Plaintiff-Appellee.\\n\\n\\n OPINION\\n\\nBERZON, Circuit Judge:\\n\\n Our circuit held nearly thirty years ago that oral\\ninstructions to the jury as to the law they must apply are an\\nessential feature of a jury trial. Guam v. Marquez, 963 F.2d\\n1311, 1314–15 (9th Cir. 1992). A trial court does not satisfy\\nits duty to instruct jurors in a criminal case just by providing\\nthose jurors with a set of written instructions to use during\\ndeliberations. Id. We further determined that when a trial\\ncourt abdicates its responsibility to charge the jury orally as\\nto the elements of the charged crimes, it commits structural\\nerror. Id. at 1315–16. We are bound by those holdings and\\nso reverse the conviction in this case.\\n\\n I\\n\\n In February 2016, Cesar Becerra was tried on six counts\\nfor crimes related to the possession and distribution of heroin\\nand methamphetamine. 1 During the final pretrial\\n\\n 1\\n Specifically, Becerra proceeded to trial on the following charges:\\n(1) possession with intent to distribute heroin in June 2014;\\n\\n4 UNITED STATES V. BECERRA\\n\\nconference, the district court told the parties that it would\\nprovide the jurors with written copies of the jury instructions\\nat the beginning of the trial. The court explained that it\\nwould confirm with the jurors at some point during the trial\\nthat they had in fact read the provided instructions. So long\\nas the instructions were not subsequently changed, the court\\nsaid, it would not read the instructions aloud to the jurors.\\nNeither party objected to this planned course of action.\\n\\n The district court implemented its plan largely as\\nannounced. On the morning of the first day of trial, each\\njuror was provided a set of draft jury instructions. These\\ninstructions, which largely followed our circuit’s model jury\\ninstructions, included explanations of the substantive\\noffenses and definitions of key terms, such as “reasonable\\ndoubt,” “possession,” and “knowingly.” See Model Crim.\\nJury Instr. 9th Cir. §§ 1.5, 1.7, 1.8, 3.1–3.2, 3.5–3.9, 3.11,\\n3.14–3.15, 3.18, 4.1, 4.8–4.9, 4.14, 4.17, 5.7, 6.10, 7.1, 7.3–\\n7.6, 8.72, 9.15–9.16, 9.18 (2010). The court told the jurors\\nto read the provided instructions: “I’m not going to give you\\na quiz on” the instructions, the court said, “but you will be\\nasked if you read it. So please read it tonight.”\\n\\n When it gave them the written instructions, the court read\\naloud to the jurors a few preliminary instructions, which, as\\nthe court explained, were “geared to . . . telling you a little\\nbit about your job as jurors.” These instructions included,\\nfor example, an explanation of the jurors’ duty to deliberate,\\na brief, non-technical explanation of the charges being tried,\\n\\n(2) possession with intent to distribute heroin in February 2014;\\n(3) possession of a 9 mm caliber firearm in furtherance of a drug-\\ntrafficking crime in February 2014; (4) possession of a .22 caliber\\nfirearm in furtherance of a drug-trafficking crime in February 2014;\\n(5) possession with intent to distribute heroin in December 2012; and\\n(6) distribution of heroin in December 2011.\\n\\n UNITED STATES V. BECERRA 5\\n\\nand an explanation of what is (and what is not) evidence.\\nThese preliminary oral instructions did not include any\\nexplanation of the elements of the three crimes charged in\\nthe six counts, or otherwise guide the jurors as to the\\nsubstantive law they were expected to apply. After a recess,\\nthe trial commenced with the parties’ opening statements.\\n\\n At the close of evidence on the next trial day, the district\\ncourt retrieved the draft jury instructions from those jurors\\nwho had brought the instructions back to the courthouse and\\nprovided each juror with a set of final instructions to use\\nduring deliberations. The court then asked Juror No. 1 in\\nopen court: “[H]ave you read each and every one of [the\\ndraft] instructions . . . ?” Juror No. 1 said, “Yes.” The court\\ncontinued: “Two?”, “Three?”, and so on through “Twelve?”\\nand “Our alternate?” Each juror, in turn, responded: “Yes.”\\nNo further follow-up was conducted by either the court or\\nthe parties to assess whether the jurors had fully read and\\nunderstood the draft instructions they had been provided.\\n\\n Between the draft and final instructions, one instruction\\nwas added and two were modified. Specifically, the court\\n(1) added an instruction explaining how the jurors should\\ntreat evidence of acts not charged; (2) added a sentence to\\nthe instruction explaining how jurors should evaluate the\\nevidence of a cooperating witness; and (3) removed a\\nsentence in an instruction on the lesser-included offense of\\npossession of a controlled substance. The court notified the\\njurors of these changes and read the full text of the three new\\nand modified instructions aloud. The district court did not\\nafter the close of evidence read aloud any of the remaining\\ntwenty-seven instructions, or otherwise orally instruct the\\njurors as to the substantive law.\\n\\n6 UNITED STATES V. BECERRA\\n\\n The parties then delivered closing arguments to the\\njurors. The next morning, the jurors returned to deliberate.\\nThey reached a guilty verdict on all six counts that same day.\\n\\n In March 2017, the district court sentenced Becerra to\\n60 months of incarceration. Becerra timely appealed.\\n\\n II\\n\\n Becerra’s principal argument on appeal is that the district\\ncourt erred by not reading the jury instructions aloud to the\\njury. 2 Becerra did not object in the district court to the plan\\nto provide primarily written instructions or to the\\nimplementation of that plan. We therefore review the failure\\nto provide an oral jury charge for plain error. United States\\nv. Depue, 912 F.3d 1227, 1233 (9th Cir. 2019) (en banc).\\nUnder plain error review, we may reverse a district court’s\\nruling only if (1) there was error, (2) the error was plain,\\n(3) the error affected substantial rights, and (4) the error\\nseriously affected the fairness, integrity, or public reputation\\nof judicial proceedings. Id. at 1232.\\n\\n A\\n\\n The first two requirements are clearly met. We\\ndisapproved an essentially similar trial procedure in\\nMarquez. The trial court in Marquez, like the district court\\nhere, never orally instructed the jurors as to the charged\\ncrimes. 963 F.2d at 1312. Instead, the jurors in Marquez\\nwere provided, after closing arguments, with a set of written\\njury instructions that included “the elements of the crimes”\\n\\n 2\\n Becerra also appeals the district court’s denial of his motion to\\nsuppress. We affirm the district court’s decision to deny the motion to\\nsuppress in a memorandum disposition filed contemporaneously with\\nthis opinion.\\n\\n UNITED STATES V. BECERRA 7\\n\\nbeing tried and the definitions for terms “mentioned in the\\ndescription[s] of the offense[s] . . . .” Id. at 1312–13. Before\\nsending the jurors to deliberate, the trial court in Marquez\\nadvised the jurors that it had provided them with written jury\\ninstructions. It then told the jurors: “You will have [the\\ninstructions] with you, so there is no need of reading it to\\nyou.” Id. at 1313.\\n\\n Marquez held that it was error for the trial court not “to\\ninstruct the jury on the elements of the [charged] offense\\nbefore submitting [the] matter to the jury.” Id. at 1314. Just\\nproviding jurors with written instructions delineating the\\nelements of the charged offenses was not enough. 3 Id.\\nat 1315–16. Relying on the Third Circuit’s decision in\\nUnited States v. Noble, 155 F.2d 315 (3d Cir. 1946),\\nMarquez reasoned that an oral jury charge is necessary to\\nensure that “each member of the jury has actually received\\nthe instructions.” 4 963 F.2d at 1314 (quoting Noble,\\n155 F.2d at 318).\\n\\n\\n\\n 3\\n Marquez at one point says that “all jury instructions must be read\\naloud to the jury in the presence of counsel and the defendant.” 963 F.2d\\nat 1314–15 (emphasis added). This summary may overstate the holding\\nof the case. Elsewhere in the opinion, Marquez states that the trial court\\nerred by not reading aloud “instructions defining the offense charged.”\\nId. at 1314; see also id. at 1315. The difference does not matter here.\\nThe trial court here did not read aloud any of the offense-defining\\ninstructions nor most of the other instructions.\\n 4\\n Marquez and Noble further reasoned that oral instructions are\\nnecessary because “counsel and the defendant [are] entitled to hear the\\ninstructions in order that they may, if they are incorrect, object to them\\nand secure their prompt correction by the trial judge.” Id. at 314 (quoting\\nNoble, 155 F.2d at 318). This secondary rationale lacks persuasive force.\\nAs long as jury instructions are provided in written form to the parties\\n\\n8 UNITED STATES V. BECERRA\\n\\n Marquez’s holding that an oral charge is a necessary\\nfeature of our criminal trial process reflects the critical\\nimportance of communicating effectively to jurors in detail\\nthe legal principles governing their deliberations. Jurors in\\nour criminal justice system are delegated the awesome\\nresponsibility of determining the innocence or guilt of a\\ndefendant put before them. A determination of guilt can, of\\ncourse, severely restrict a defendant’s physical liberty for\\nyears or decades. And the jury’s decision will generate a\\ncascade of other consequences: A citizen found guilty often\\nis unable to participate in our democratic system by voting,\\nsee, e.g., Wash. Const. art. VI, § 3; Or. Rev. Stat.\\n§ 137.281(3)(d); a non-citizen may lose her ability to remain\\nin the country, see, e.g., Martinez v. Mukasey, 551 F.3d 113,\\n118 n.3 (9th Cir. 2008).\\n\\n Because jurors are assigned such a critical role in our\\ncriminal justice system, “[i]t is essential to the\\nadministration of justice that a jury scrupulously follow the\\nlaw as given to it by the judge, and to that end his instructions\\nshould be clear and firmly fixed in the mind of each juror.”\\nBabson v. United States, 330 F.2d 662, 666 (9th Cir. 1964).\\nSince before the founding of our Republic, courts have\\n\\nsufficiently in advance, objections can be made well before instructions\\nare distributed to the jurors.\\n\\n Federal Rule of Criminal Procedure 30 has long required that trial\\ncourts provide the parties with an opportunity to make specific\\nobjections to the jury instructions; that opportunity must take place “out\\nof the jury’s hearing and, on request, out of the jury’s presence.” Fed.\\nR. Crim. P. 30(d). In practice, district courts comply with this rule by\\nproviding the parties an opportunity to review and to object to the\\nplanned instructions before they are read to the jury. 2A Fed. Prac. &\\nProc. Crim. § 484 (4th ed.); see also United States v. Loya, 807 F.2d\\n1483, 1492 (9th Cir. 1987); Las Vegas Merchant Plumbers Ass’n v.\\nUnited States, 210 F.2d 732, 744 (9th Cir. 1954).\\n\\n UNITED STATES V. BECERRA 9\\n\\nuniversally met the need to educate jurors by orally advising\\njurors “in the presence of the parties, the counsel, and all\\nothers . . . in matters of law arising upon th[e] evidence.”\\n3 William Blackstone, Commentaries *375; see also United\\nStates v. Robinson, 724 F.3d 878, 887 (7th Cir. 2013); Noble,\\n155 F.2d at 317 n.1 (quoting Thomas M. Cooley,\\nConstitutional Limitations *321 (1st ed. 1868)).\\n\\n There are excellent reasons this feature of our trial\\nprocess endures. For one, many jurors may not adequately\\ncomprehend written instructions. It is no secret that jury\\ninstructions are often written in language more suitable for\\nlawyers than laypersons. See, e.g., Jonathan Barnes,\\nTailored Jury Instructions: Writing Instructions that Match\\na Specific Jury’s Reading Level, 87 Miss. L.J. 193, 195\\n(2018); Prentice H. Marshall et al., Pattern Criminal Jury\\nInstructions: Report of the Federal Judicial Center\\nCommittee to Study Jury Instructions, at vii, 79–83 (1982);\\nPhil H. Cook, Instructionese: Legalistic Lingo of Contrived\\nConfusion, 7 J. Mo. B. 113 (1951). Written instructions can\\nbe especially impenetrable for those jurors with limited\\nreading comprehension skills. 5 See Laurence J. Severance\\net. al., Toward Criminal Jury Instructions that Jurors Can\\nUnderstand, 75 J. Crim. L. & Criminology 198, 224 (1984);\\nRobert P. Charrow & Veda R. Charrow, Making Legal\\n\\n 5\\n This group of jurors is not insignificant. Fourteen percent of\\nAmerican adults have less than basic prose literacy; these adults range\\nfrom the nonliterate to those with the ability to “locat[e] easily\\nidentifiable information in short, commonplace prose texts.” Nat’l Ctr.\\nfor Education Statistics, A First Look at the Literacy of America’s Adults\\nin the 21st Century 2–4 (2006). Another 29 percent have only basic\\nprose literacy—in other words, can “read[] and understand[] information\\nin short, commonplace prose texts.” Id. at 3. Only 13 percent of\\nAmerican adults have the skills necessary to “read[] lengthy, complex,\\nabstract prose texts.” Id.\\n\\n10 UNITED STATES V. BECERRA\\n\\nLanguage Understandable: A Psycholinguistic Study of Jury\\nInstructions, 79 Colum. L. Rev. 1306, 1320–21 (1979). And\\neven if a jury is comprised of an unusually educated cross-\\nsection of the community, many of us at times succumb to\\nthe temptation to glaze over a long paragraph of text or flip\\nover a few pages of a lengthy stack of papers. When the\\ninstructions are read orally, tonal inflection can make the\\ncontent of the instructions more accessible, as well as\\ndiscourage the “tuning out” common when reading dense\\nmaterial. Oral instruction in the formal courtroom setting\\nthus assures that jurors are exposed to the substance of the\\nessential instructions by at least one sensual route.\\n\\n The oral charge also performs a second, signaling\\nfunction that cannot be replaced by a printout or a pamphlet.\\nJury instructions are not the judicial equivalent of a car\\nmanual or a cookbook. When an enrobed judge orally\\ncharges the jury, the jurors are impressed with the fact that\\nthey have been entrusted with the power to decide the\\ndefendant’s fate. This oral, public ritual helps ensure that\\n“jurors . . . recognize the enormity of their task and . . . take\\n[that task] seriously.” Nancy S. Marder, Bringing Jury\\nInstructions into the Twenty-First Century, 81 Notre Dame\\nL. Rev. 449, 465 (2006). By analogy, reading a sermon is\\nnot the same as hearing it read in church or synagogue by a\\npastor or priest or rabbi. If it were, religious leaders would\\njust hand out the sermons and end the services early.\\n\\n For these reasons, the historic practice of oral jury\\ninstruction remains central to the fairness of jury trials. That\\nconclusion does not mean that procedures for instructing\\njuries have remained static—or should. Additions to oral\\ninstructions have enhanced the likelihood that jury\\ninstructions will effectively communicate to jurors the legal\\nprinciples governing their critical task. See id. at 475–82.\\n\\n UNITED STATES V. BECERRA 11\\n\\nFor example, pattern jury instructions, now routinely\\npromulgated and updated, originated in the early 20th\\ncentury and became widely used in the 1960s. 6 See Robert\\nG. Nieland, Assessing the Impact of Pattern Jury\\nInstructions, 62 Judicature 185, 185–87 (1978). Also,\\nalthough the use of written jury instructions was once a\\nrarity, courts now often supplement oral jury instructions\\nwith written ones, giving them to jurors to read\\ncontemporaneously with the oral instructions or to take to\\nthe jury room after the oral charge. See Cal. Penal Code\\n§§ 1093(f), 1137 (providing jurors with a right to request\\nwritten instructions); Ninth Circuit Jury Instruction\\nCommittee, Manual of Model Criminal Jury Instructions\\n§ 3.1 (2010) (“A copy of these instructions will be available\\nin the jury room for you to consult.”); see also William W.\\nSchwarzer, Communicating with Juries: Problems and\\nRemedies, 69 Calif. L. Rev. 731, 756–57 (1981). Written\\ninstructions are mandatory in some jurisdictions. See, e.g.,\\nOr. Rev. Stat. § 136.330 (1); Or. R. Civ. P. 59(B); Wash.\\nSup. Ct. Civ. R. 51(h). We have no doubt that there is room\\nfor more useful innovation as to both how jury instructions\\nare drafted and how they are communicated to the jurors. 7\\n 6\\n As another example, Federal Rule of Criminal Procedure 30 was\\nmodified in 1987 to allow district courts to charge the jury either before\\nor after closing arguments. See Fed. R. Crim. P. 30 Advisory\\nCommittee’s Note to 1987 Amendment.\\n 7\\n Scholars, judges, and lawyers have long recognized that jurors far\\ntoo often decide cases without an adequate understanding of the law they\\nare required to apply. See, e.g., United States v. Cohen, 145 F.3d 82, 93\\n(2d Cir. 1942) (Hand, J.); Nancy S. Marder, Bringing Jury Instructions\\ninto the Twenty-First Century, 81 Notre Dame L. Rev. 449, 454–58\\n(2006); Schwarzer, Communicating with Juries: Problems and\\nRemedies, supra; David U. Strawn & Raymond W. Buchanan, Jury\\nConfusion: A Threat to Justice, 59 Judicature 478, 480–81 (1976); Wylie\\nA Aitken, Comment: The Jury Instruction Process—Apathy or\\n\\n12 UNITED STATES V. BECERRA\\n\\nBut even as the exact form of a trial court’s jury charge has\\nevolved, there has always been a bedrock recognition that\\nthe trial court must orally charge the jury before\\ndeliberations commence.\\n\\n Notably, the government in this case does not contend\\notherwise. It recognizes that, as Marquez makes clear, the\\ndistrict court in this case erred by not reading the essential\\njury instructions aloud. Rather, the government’s central\\ncontention is that Marquez is not here binding as to its\\nsecond holding—that the failure of the district court to read\\njury instructions aloud to the jurors in open court is structural\\nerror and so not subject to harmless error analysis. We turn\\nto that contention.\\n\\n B\\n\\n Contrary to the government’s submission, Marquez is\\nbinding on us not only with regard to its substantive holding\\nas to the necessity of oral jury instructions but also as to its\\nsecond holding—that the district court committed structural\\nerror by failing to read an oral charge to the jurors.\\n\\n Marquez’s conclusion that the omission of an oral charge\\nis structural error rests primarily on its observation that an\\nappellate court cannot meaningfully assess whether failure\\nto provide oral instructions impacted “the jury’s\\nperformance of its duties” in a particular trial. Id.at 1315–\\n16. In Marquez, “the record [was] silent regarding whether\\nany of the jurors read the instructions that were submitted to\\nthem.” Id. at 1316. Here, there was an attempt to ascertain\\n\\nAggressive Reform, 49 Marquette L. Rev. 137, 137 n.2 (1965); Robert\\nWinslow, The Instruction Ritual, 13 Hastings L. J. 456, 469–70 (1962).\\n\\n UNITED STATES V. BECERRA 13\\n\\nthat the jurors read the instructions provided to them. 8 But\\nwe do not assess whether an error is structural on a case-by-\\ncase basis. “[A] constitutional error is either structural or it\\nis not.” Neder v. United States, 527 U.S. 1, 14 (1999). “An\\nerror can count as structural even if the error does not lead\\nto fundamental unfairness in every case.” Weaver v.\\nMassachusetts, ___ U.S. ___, 137 S. Ct. 1899, 1908 (2017).\\n\\n The dissent takes issue with this recent Supreme Court\\npronouncement, arguing that “deciding whether a particular\\nerror is properly labeled ‘structural’ entails a close look at\\nspecifics.” Of course, we must determine on a case-by-case\\nbasis whether there was an error, and, if so, whether that kind\\nof error is structural. Failure to conduct a trial in public\\nabsent any factual findings is error, Waller v. Georgia,\\n467 U.S. 39, 45–46 (1984), and structural, see id. at 49–50;\\nconducting a trial or hearing after making adequate factual\\nfindings is not error at all. Id. at 45. Omission of a single\\nelement of the charged offense from the jury instructions is\\nerror, but not structural error, Neder, 527 U.S. at 8–11;\\nomission of the burden of proof from those instructions is\\nerror, and structural, see id. at 11. And in some instances\\nwhere a structural error has occurred, the relief required to\\ncure that error may not result in a new trial for the defendant.\\nWaller, 467 U.S. at 49–50. But none of these caveats means\\n\\n 8\\n We note that the trial judge’s questioning of the jurors was\\nperfunctory, and the jurors were not placed under oath. Moreover, the\\njurors’ “yes” answers do not establish that they read the instructions\\ncarefully enough to comprehend their essentials. A simple “yes” also\\ndoes not answer: Did the juror read the instruction alone or with one or\\nmore persons? Did the juror read the instructions in one or more sittings?\\nDid the juror consult dictionaries or other legal sources to help him or\\nher understand any terms? Did the juror discuss the instructions with\\nother jurors or other persons? Did the juror read the instructions while\\nengaged in other activities such as watching television?\\n\\n14 UNITED STATES V. BECERRA\\n\\nthat once we identify an error that is structural in kind—here,\\nfailure to instruct the jury orally—we reconsider whether\\nthat error should be deemed structural in the specific case\\nbefore us.\\n\\n Of course, there may be some cases where it is hard to\\ndiscern whether the trial court acted in a manner that we have\\nalready deemed structural error, or whether the trial court\\ncommitted error that is related but distinct in kind. Cf.\\nJohnson v. United States, 520 U.S. 461, 469 (1997). This is\\nnot that case. The error held structural in Marquez was the\\nfailure of the judge orally “to read the elements of the crime\\nto the jury,” 963 F.3d at 1315 (capitalization modified); it\\nwas not the failure to ascertain whether the jury read written\\ninstructions provided to it in lieu of oral instruction.\\n\\n Thus, under Marquez, the failure to instruct the jury\\norally was structural error absent some intervening higher\\nlegal authority “clearly irreconcilable” with Marquez.\\nGammie, 335 F.3d at 900; see also United States v.\\nXinidakis, 598 F.3d 1213, 1216 (9th Cir. 2010). There is no\\nsuch authority.\\n\\n No en banc case or Supreme Court case has held that the\\nfailure to instruct the jury orally is not structural error. And\\nthe overall reach of the structural error doctrine has remained\\nlargely the same since Marquez was decided in 1992. Then\\nand now, “[t]he purpose of the structural error doctrine [has\\nbeen] to ensure insistence on certain basic, constitutional\\nguarantees that should define the framework of any criminal\\ntrial.” Weaver, 137 S. Ct. at 1907. The “defining feature”\\nof such error, is that it “‘affect[s] the framework within\\nwhich the trial proceeds,’ rather than being ‘simply an error\\nin the trial process itself.’” Id. (quoting Arizona v.\\nFulminante, 499 U.S. 306, 310 (1991)) (alteration in\\n\\n UNITED STATES V. BECERRA 15\\n\\noriginal). Marquez cited Fulminante. See 963 F.2d at 1315–\\n16.\\n\\n Marquez’s reasoning is not irreconcilable with later case\\nlaw either. One of Marquez’s central premises for its\\nstructural error holding—that the failure to provide any oral\\ninstructions to the jurors is an error that as a practical matter\\n“precludes a harmless error analysis,” id. at 1316—is fully\\ncompatible with post-Fulminante case law. The Supreme\\nCourt in Weaver recently explained that a structural error\\napproach is appropriate for cases in which “the effects of the\\nerror are simply too hard to measure,” making harmless error\\nreview futile. 137 S. Ct. at 1908.\\n\\n In sum, neither Marquez’s holding nor its reasoning is at\\nodds with now controlling structural error precedents. We\\ntherefore remain bound by Marquez. The virtually complete\\nfailure to instruct the jurors orally was structural error.\\n\\n C\\n\\n Even if we were not bound by Marquez, we would\\nnonetheless conclude that it is appropriate to categorize the\\nfailure to charge jurors orally as structural error.\\n\\n As the Court explained recently in Weaver, an error is\\nusually deemed structural for at least one of three broad\\nreasons, although “[i]n a particular case, more than one of\\nthese rationales may be part of the explanation for why an\\nerror is deemed to be structural.” Id. at 1908. First, an error\\nis structural if it “deprive[s] defendants of ‘basic protections’\\nwithout which ‘a criminal trial cannot reliably serve its\\nfunction as a vehicle for determination of guilt or\\ninnocence,” Neder, 527 U.S. at 8–9 (quoting Rose v. Clark,\\n478 U.S. 570, 577–78 (1986)); see also Weaver, 137 S. Ct.\\nat 1908. Second, errors have been found structural where\\n\\n16 UNITED STATES V. BECERRA\\n\\nthe effect of those errors are “necessarily unquantifiable and\\nindeterminate,” making a harmless error analysis\\nimpossible. Neder, 527 U.S. at 11 (quoting Sullivan v.\\nLouisiana, 508 U.S. 275, 282 (1993)); see also Weaver,\\n137 S. Ct. at 1908. Finally, certain errors have been\\nconsidered structural where the “right at issue is not\\ndesigned to protect the defendant from erroneous conviction\\nbut instead protects some other interest.” Weaver, 137 S. Ct.\\nat 1908; see also McKaskle v. Wiggins, 465 U.S. 168, 177,\\nn.8 (1984). Each of these rationales is implicated by the\\nfailure to instruct the jury orally.\\n\\n First, for the reasons discussed earlier, assuring that\\njurors are generally aware of the law to be applied is a\\nprotection without which a criminal trial cannot reliably\\nserve its function. When a trial court does not provide the\\njurors with an oral charge, there has not “simply [been] an\\nerror in the trial process.” Weaver, 137 S. Ct. at 1907\\n(quoting Fulminante, 499 U.S. at 310). The oral charge\\nserves both to ensure that jurors are aware of the correct law\\nand to instill in the jurors proper sense of respect for the\\njury’s role in the criminal justice process. See supra at 8–\\n12. Without an oral jury charge, the court has omitted a\\nfundamental and ubiquitous feature of the criminal trial\\nframework—the equivalent of holding no voir dire before\\nselecting a jury, or holding the trial outside of public view.\\nSee Waller, 467 U.S. at 49 n.9. Moreover, just as presidents\\ntake the oath of office in public rather than by signing in\\nprivate a document containing the oath, so as to convey that\\nthe president’s duty is of profound importance, the oral\\ndelivery of jury instructions in open court, by a judge\\nwearing a robe, sitting before the prosecution, defendants,\\nthe jury, and the courtroom audience, conveys to the jurors\\nthat the jury’s responsibility is of profound importance, as it\\n\\n UNITED STATES V. BECERRA 17\\n\\nindeed is. 9 That recognition as well is essential to the\\nfunctioning of the jury system.\\n\\n Second, the impact on the jurors’ verdict of a failure to\\ninstruct jurors orally is “necessarily unquantifiable and\\nindeterminate.” Neder, 527 U.S. at 11 (quoting Sullivan, 508\\nU.S. at 282). Because the court’s failure to instruct\\nimplicates “all of the jury’s findings,” Sullivan, 508 U.S.\\nat 281, whether the jurors would have ruled the same way\\nhad they been orally instructed cannot meaningfully be\\ndetermined after the fact. To assess harmless error in this\\ncircumstance, a “reviewing court can only engage in pure\\nspeculation—its view of what a reasonable jury would have\\ndone.” Id. Even where the evidence of guilt is\\noverwhelming, the entire premise of the jury trial system is\\nthat jurors, not judges, are entrusted with determining\\nwhether to believe the evidence presented and then apply the\\nlaw to the facts determined to be true. Where, as here, the\\nlapse as to assuring the jurors’ performance of its task is not\\npartial but complete, an after-the-fact appraisal simply\\namounts to a denial of the constitutionally guaranteed trial\\nby jury. 10\\n\\n 9\\n It is worth noting that “in a jury trial . . . a verdict . . . must be\\nrendered by the jury in open court . . . in order to become final.” Gouveia\\nv. Espinda, 926 F.3d 1102, 1115 (9th Cir. 2019) (quoting Harrison v.\\nGillespie, 640 F.3d 888, 898 (9th Cir. 2011)). This court has recognized\\nthat rendering a verdict in open court cannot be equated with writing that\\nsame verdict on a piece of paper behind closed doors and delivering the\\ndocument to the judge. Similarly, the act of reading jury instructions at\\nhome is not equivalent to hearing a judge read those instructions aloud\\nin open court.\\n 10\\n By contrast, the Court held in Neder that the omission of a single\\nelement of the charged offense from the jury instructions was not\\nstructural error, because in that circumstance, the failure “did not\\n\\n18 UNITED STATES V. BECERRA\\n\\n Third, without an oral charge, a key aspect of the trial is\\nhidden from public observation, and the solemnity of the\\noccasion for the public is fatally compromised. In this\\nrespect, the error is directly connected to denial of the right\\nto a public trial and so implicates the third Weaver\\ncategory—protection of “some other interest.” 137 S. Ct.\\nat 1908. Here, that interest is the involvement of the\\npublic—including the media—in viewing the important\\naspects of trials, including the charge to the jury.\\n\\n In short, all three of Weaver’s rationales for holding an\\nerror is structural are present here. Oral instruction as to the\\nlegal framework the jury must apply is a “basic[]\\nconstitutional guarantee[]” that must occur in all criminal\\ntrials, and failure to so instruct a jury is structural error. Id.\\nat 1907.\\n\\n D\\n\\n The third requisite of plain error review is necessarily\\nmet where the error at issue is structural. See United States\\nv. Yamashiro, 788 F.3d 1231, 1236 (9th Cir. 2015) (“a\\nfinding of structural error satisfies the third prong of the\\nOlano plain-error test” (quoting United States v. Recio,\\n371 F.3d 1093, 1101 (9th Cir. 2004))). Cf. United States v.\\nChavez-Cuevas, 862 F.3d 729, 734 (9th Cir. 2017), cert.\\ndenied, 138 S. Ct. 1179 (2018) (stating that when an error\\n“implicates a structural right, the error affects substantial\\nrights, and undermines the fairness of a criminal proceeding\\nas a whole” (citations omitted)).\\n\\n\\n\\n\\n‘vitiat[e] all of the jury’s findings.” 527 U.S. at 11 (quoting Sullivan,\\n508 U.S. at 281).\\n\\n UNITED STATES V. BECERRA 19\\n\\n The failure to instruct the jury orally in this case also\\n“seriously affect[ed] the fairness, integrity, or public\\nreputation of judicial proceedings,” satisfying the fourth\\nelement necessary to reverse under plain error review.\\nDepue, 912 F.3d at 1232. The same reasoning that justifies\\ncategorizing this error as structural supports this conclusion.\\nSee supra pp. 15–18. It is impossible to know whether the\\njury would have come to the same conclusion had the judge\\norally instructed them as to the elements of the charges.\\nSuch uncertainty undermines the fairness and integrity of\\nthese judicial proceedings. In addition, where, as here, there\\nis definitive precedent precluding the district court’s\\nconduct, the “flagrant nature of the district court’s error . . .\\nseriously affects the public reputation of judicial\\nproceedings.” United States v. Hammons, 558 F.3d 1100,\\n1105 (9th Cir. 2009) (citations omitted) (holding a district\\ncourt’s failure to state its reasoning for a sentence on the\\nrecord, as required by established Supreme Court and Ninth\\nCircuit law, to be plain error). Finally, as noted earlier,\\nassuring public awareness of the charge to the jury and\\npromoting the dignity and formality of a critical stage of the\\ncriminal trial are among the underpinnings of the oral\\ninstruction requirement. These values rest on the very same\\nconcerns for the “fairness, integrity, [and] public reputation\\nof judicial proceedings” that comprise the fourth plain error\\nfactor. Depue, 912 F.3d at 1232.\\n\\n For these reasons, we exercise our discretion to notice\\nthe plain error committed by the district court in this case.\\n\\n III\\n\\n Under Marquez, it is structural error not to instruct the\\njury orally as to the entire substantive law the jury must\\napply. Because the trial judge here delivered no such oral\\ncharge, the requisites for reversing on plain error review\\n\\n20 UNITED STATES V. BECERRA\\n\\nhave been met. We therefore reverse the conviction and\\nremand for a new trial.\\n\\n REVERSED AND REMANDED.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4476,"cells":{"id":{"kind":"number","value":4663418,"string":"4,663,418"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Protect Our Communities v. Darryl Lacounte"},"decision_date":{"kind":"string","value":"2019-09-23"},"docket_number":{"kind":"string","value":"17-55647"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and Carol Bagley Amon, * District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"GOULD, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nPROTECT OUR COMMUNITIES No. 17-55647\\nFOUNDATION; DAVID HOGAN; NICA\\nKNITE, D.C. No.\\n Plaintiffs-Appellants, 3:14-cv-02261-\\n JLS-JMA\\n v.\\n\\nDARRYL LACOUNTE, Acting OPINION\\nDirector, Bureau of Indian Affairs;\\nDAVID L. BERNHARDT, Secretary,\\nDepartment of the Interior; TARA\\nKATUK MACLEAN SWEENEY,\\nAssistant Secretary for Indian\\nAffairs; AMY DUTSCHKE, Regional\\nDirector, Bureau of Indian Affairs\\nPacific Region; JOHN RYDZIK, Chief,\\nBureau of Indian Affairs Pacific\\nRegion Division of Environmental\\nCultural Resources Management &\\nSafety,\\n Defendants-Appellees,\\n\\nTULE WIND, LLC; EWIIAAPAAYP\\nBAND OF KUMEYAAY INDIANS,\\n Intervenor-Defendants-\\n Appellees.\\n\\f2 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\n Appeal from the United States District Court\\n for the Southern District of California\\n Janis L. Sammartino, District Judge, Presiding\\n\\n Argued and Submitted November 14, 2018\\n Pasadena, California\\n\\n Filed September 23, 2019\\n\\n Before: Ronald M. Gould and Mary H. Murguia, Circuit\\n Judges, and Carol Bagley Amon, * District Judge.\\n\\n Opinion by Judge Gould\\n\\n\\n SUMMARY **\\n\\n\\n Environmental Policy\\n\\n The panel affirmed the district court’s summary\\njudgment in favor of Bureau of Indian Affairs (“BIA”)\\nofficials, Tule Wind, LLC and Ewiiaapaayp Band of\\nKumeyaay Indians in an action challenging the BIA’s\\napproval of an industrial-scale wind facility in Southern\\nCalifornia.\\n\\n Tule plans to construct eighty-five wind turbines, and the\\nproject was split into two phases. Phase I concerned sixty-\\n\\n *\\n The Honorable Carol Bagley Amon, United States District Judge\\nfor the Eastern District of New York, sitting by designation.\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 3\\n\\nfive turbines constructed on federal land, requiring approval\\nfrom the Bureau of Land Management (“BLM”). Phase II\\nconcerned twenty turbines on the Tribe’s reservation,\\nrequiring approval from the BIA, which serves as a trustee\\nfor the Tribe. BLM prepared an environmental impact\\nstatement (“EIS”) under the National Environmental Policy\\nAct (“NEPA”) that covered both phases. BIA approved\\nPhase II in a Record of Decision that relied on BLM’s EIS\\nand Tule’s Supplemental Protection Plan.\\n\\n The panel considered plaintiffs’ contention that BLM’s\\nreliance on the EIS was improper because BIA did not\\nexplain its decision not to implement one of the EIS’s listed\\nmitigation measures. The panel agreed with the defendants\\nthat the BIA did follow the command of this mitigation\\nmeasure, and for that reason, did not need to explain its\\ndecision not to implement it.\\n\\n The panel next considered plaintiffs’ contention that the\\nEIS’s consideration of five action alternatives was deficient\\nbecause it did not consider an alternative where only some\\nof the Phase II turbines were authorized. The panel held that\\nthe issue was properly preserved, and not waived. The panel\\nfurther held that viewing the project as a whole, the\\nalternatives analysis was sufficient.\\n\\n Plaintiffs argued that BIA should have prepared a\\nsupplemental EIS to analyze information that arose after the\\nEIS was published. The panel considered five grounds\\nasserted by plaintiffs in support of their argument, and\\nconcluded that additional environmental review was not\\nrequired.\\n\\n The panel rejected plaintiffs’ challenges to BIA’s\\ndecision not to require Tule to obtain an eagle take permit\\n\\f4 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\nunder the Bald and Golden Eagle Protection Act (“BGEPA”)\\nfrom the U.S. Fish and Wildlife Service. BIA did not require\\nTule to obtain a permit before Tule began construction as the\\nService had urged, and only required Tule to apply for a\\npermit before it began operation of the turbines. The panel\\nrejected plaintiffs’ false contention that BIA intimated that\\nTule could comply with BGEPA merely by applying for a\\npermit. The panel held that BIA’s authorization was not in\\nany way a violation of the law because the BIA, like the\\nBLM, required Tule to apply for a permit and required Tule\\nto comply with all applicable laws. In addition, the panel\\nheld that the BIA did not act arbitrarily and capriciously by\\nnot conditioning its approval of Phase II on Tule obtaining a\\npermit.\\n\\n The panel concluded that in the total circumstances of\\nthis case, the EIS analysis was sufficient to satisfy NEPA,\\nand so far as the demands of NEPA and the Administrative\\nProcedure Act were concerned, this project could proceed.\\n\\n\\n COUNSEL\\n\\nWilliam S. Eubanks II (argued), Meyer Glitzenstein &\\nEubanks LLP, Fort Collins, Colorado; William N. Lawton,\\nMeyer Glitzenstein & Eubanks LLP ,Washington, D.C.; for\\nPlaintiffs-Appellants.\\n\\nAllen M. Brabender (argued), Brian Collins, and John H.\\nMartin, Attorneys; Eric Grant, Deputy Assistant Attorney\\nGeneral; Jeffrey H. Wood, Acting Assistant Attorney\\nGeneral; Environment & Natural Resources Division,\\nUnited States Department of Justice, Washington, D.C.; for\\nDefendants-Appellees.\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 5\\n\\nJeffrey Durocher, Portland, Oregon; for Intervenor-\\nDefendant-Appellee Tule Wind, LLC.\\n\\nBradley G. Bledsoe Downes, Bledsoe Downes PC,\\nChandler, Arizona, for Intervenor-Defendant-Appellee\\nEwiiaapaayp Band of Kumeyaay Indians.\\n\\n\\n OPINION\\n\\nGOULD, Circuit Judge:\\n\\n Plaintiffs Protect Our Communities Foundation, David\\nHogan, and Nica Knite (“Plaintiffs”) challenge the decision\\nof the Bureau of Indian Affairs (“BIA”) to approve an\\nindustrial-scale wind facility in Southern California. The\\ndistrict court granted summary judgment to Defendant BIA\\nofficials, Defendant-Intervenor Tule Wind, LLC (“Tule”),\\nand Defendant-Intervenor Ewiiaapaayp Band of Kumeyaay\\nIndians (“the Tribe”) (collectively, “Defendants”). We\\naffirm.\\n\\n I\\n\\n Tule plans to construct eighty-five wind turbines about\\nsixty miles east of San Diego, California. During the\\nplanning and approval process, the project was split into two\\nphases. Phase I concerned sixty-five turbines constructed on\\nfederal land in a valley and required approval from the\\nBureau of Land Management (“BLM”), which is responsible\\nfor granting rights-of-way for use of federal lands. Phase II\\nconcerned twenty turbines on the Tribe’s reservation on\\nridgelines above the valley. Phase II required approval from\\nBIA, which serves as a trustee for federally recognized\\nIndian tribes.\\n\\f6 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\n Before BLM and BIA approved the respective phases,\\nthe agencies were required to analyze environmental impacts\\nunder the National Environmental Protection Act (“NEPA”),\\n42 U.S.C. §§ 4321 et seq. BLM prepared an environmental\\nimpact statement (“EIS”) that covered both phases.\\n\\n Among other environmental impacts, the EIS expressly\\nidentified an “unavoidable adverse impact” to golden eagles\\nfrom collisions with the turbines and loss of breeding\\nterritory, impacts that were especially acute for the Phase II\\nturbines. The EIS considered five project alternatives for the\\nTule project, including one that would eliminate 63 turbines,\\nincluding all of the Phase II turbines, from the 128 that were\\noriginally proposed.\\n\\n For Phase I, Tule drafted a Project-Specific Avian and\\nBat Protection Plan (“Protection Plan”) that described\\npossible means of mitigating bird and bat impacts in detail.\\nRelying on that plan and the EIS, BLM approved Phase I.\\nImportantly, that approval survived review in this court. See\\nProtect Our Communities Found. v. Jewell, 825 F.3d 571,\\n577 (9th Cir. 2016) [hereinafter “Protect Our Communities\\nI”].\\n\\n For Phase II, Tule drafted a Supplemental Project-\\nSpecific Avian and Bat Protection Plan (“Supplemental\\nProtection Plan”) that included updated eagle surveys and\\ndescribed measures to document and avoid bird impacts.\\nThe Supplemental Protection Plan concluded that, with\\nmitigation measures, Phase II could “meet the current no-net\\nloss standard for local breeding eagle populations.” BIA\\nmade the Supplemental Protection Plan available for public\\ncomment. The United States Fish and Wildlife Service\\n(“FWS”), among other entities, criticized the Supplemental\\nProtection Plan’s methodologies and conclusion.\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 7\\n\\n BIA approved Phase II in a Record of Decision (“ROD”)\\nthat relied on BLM’s EIS and Tule’s Supplemental\\nProtection Plan. The ROD adopted several mitigation\\nmeasures designed to avoid impacts to golden eagles. These\\nmitigation measures included a requirement that before\\noperating, Tule had to apply for an eagle take permit under\\nthe Bald and Golden Eagle Protection Act (“BGEPA”),\\n16 U.S.C. § 668.\\n\\n Plaintiffs challenged BIA’s approval in the district court,\\nasserting three alleged errors. The district court granted\\nDefendants’ motion for judgment on the pleadings on two of\\nthe claimed errors and granted Defendants’ motions for\\nsummary judgment on the third. Plaintiffs timely appealed.\\n\\n II\\n\\n A district court’s grant of summary judgment is reviewed\\nde novo. United States v. City of Tacoma, 332 F.3d 574, 578\\n(9th Cir. 2003). Dismissal on the pleadings pursuant to Rule\\n12(c) is also reviewed de novo. See Daewoo Elecs. Am. Inc.\\nv. Opta Corp., 875 F.3d 1241, 1246 (9th Cir. 2017).\\n\\n Under the Administrative Procedure Act (“APA”), we\\nreview agency action to determine whether it is “arbitrary,\\ncapricious, an abuse of discretion, or otherwise not in\\naccordance with law.” 5 U.S.C. § 706(2)(A). An agency\\nacts in an “arbitrary and capricious” manner when it “relie[s]\\non factors which Congress has not intended it to consider,\\nentirely fail[s] to consider an important aspect of the\\nproblem, offer[s] an explanation for its decision that runs\\ncounter to the evidence before the agency, or is so\\nimplausible that it c[an]not be ascribed to a difference in\\nview or the product of agency expertise.” Motor Vehicle\\nMfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,\\n43 (1983).\\n\\f8 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\n As a general rule, we will “uphold agency decisions so\\nlong as the agencies have ‘considered the relevant factors\\nand articulated a rational connection between the factors\\nfound and the choices made.’” City of Sausalito v. O’Neill,\\n386 F.3d 1186, 1206 (9th Cir. 2004) (quoting Selkirk\\nConservation All. v. Forsgren, 336 F.3d 944, 953–54 (9th\\nCir. 2003)).\\n\\n In addition to APA challenges, Plaintiffs raise challenges\\nunder NEPA. NEPA requires agencies to prepare an EIS for\\n“major Federal actions significantly affecting the quality of\\nthe human environment.” 42 U.S.C. § 4332(2)(C). The EIS\\nmust contain, among other things, a detailed discussion of\\n“the environmental impact of the proposed action,” “adverse\\nenvironmental effects which cannot be avoided,”\\n“alternatives to the proposed action,” and possible\\nmitigation measures. Id.; 40 C.F.R. § 1502.16. If multiple\\nfederal agencies are “involved in the same action” or\\n“involved in a group of actions directly related to each\\nother,” then “[a] lead agency shall supervise” the EIS\\npreparation, or the agencies may act as joint lead agencies.\\n40 C.F.R. § 1501.5.\\n\\n After finalizing the EIS, the agency must select a course\\nof action within the range of alternatives analyzed and issue\\nan ROD. Id. § 1505.1. The ROD explains why the agency\\nchose a particular alternative, whether all practical means for\\navoiding or minimizing environmental harm have been\\nadopted, and, if not, why not. See id. § 1505.2.\\n\\n NEPA requires these procedural steps but does not\\nrequire an agency to reach any particular result. Hells\\nCanyon All. v. U.S. Forest Serv., 227 F.3d 1170, 1177 (9th\\nCir. 2000). Rather, compliance with NEPA involves the\\napplication of a “rule of reason,” which involves “a\\npragmatic judgment whether the EIS’s form, content, and\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 9\\n\\npreparation foster both informed decision-making and\\ninformed public participation.” Churchill Cty. v. Norton,\\n276 F.3d 1060, 1071 (9th Cir. 2001) (quoting California v.\\nBlock, 690 F.2d 753, 761 (9th Cir. 1982)).\\n\\n Nevertheless, a reviewing court will ensure that the\\nagency took a “hard look” at the EIS to determine whether it\\n“contains a reasonably thorough discussion of the significant\\naspects of the probable environmental consequences.” Id. at\\n1071–72 (quotation marks omitted). NEPA favors\\n“coherent and comprehensive up-front environmental\\nanalysis to ensure . . . that the agency will not act on\\nincomplete information, only to regret its decision after it is\\ntoo late to correct.” Id. at 1072–73 (quotation marks\\nomitted).\\n\\n III\\n\\n A\\n\\n BIA relied on BLM’s EIS, which addressed both Phase\\nI and Phase II, to satisfy its NEPA review requirement. See\\n42 U.S.C. § 4332(2)(C). Plaintiffs contend that that reliance\\nwas improper because BIA did not explain its decision to not\\nimplement one of the EIS’s listed mitigation measures, MM\\nBIO-10f. That measure provides:\\n\\n Authorize construction of portions of the\\n project based on the results of behavioral and\\n population studies of local golden eagles:\\n Construction of [Phase II] would occur at\\n those turbine locations that show reduced risk\\n to the eagle population following analysis of\\n detailed behavior studies of known eagles in\\n the vicinity of the Tule Wind project.\\n Pending the outcome of eagle behavior\\n\\f10 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\n studies, all, none, or part of the second\\n portion of the project would be\\n authorized. . . . The final criteria determining\\n the risk each location presents to eagles will\\n be determined [by BIA] in consultation with\\n the required resource agencies, tribes, and\\n other relevant permitting agencies . . . .\\n Turbine locations exceeding the acceptable\\n risk levels to golden eagles based on these\\n final criteria will not be authorized for\\n construction.\\n\\n Defendants respond that in fact BIA did follow the\\ncommand of this mitigation measure and, for that reason, did\\nnot need to explain its decision not to implement it. We\\nagree. First, BIA considered whether to “authorize\\nconstruction of portions of the project,” by considering each\\nturbine and finding that all twenty satisfied the criteria for\\nauthorization. Second, BIA considered “the risk each\\nlocation presents to eagles” in the Supplemental Protection\\nPlan; in particular, the Supplemental Protection Plan\\ndiscussed whether to cease daytime operation for certain\\nturbines close to specific nests.\\n\\n Third, BIA satisfied the requirement to establish “final\\ncriteria determining the risk each location presents to eagles”\\nand evaluate “acceptable risk levels to golden eagles based\\non these final criteria.” The Supplemental Protection Plan\\noutlined how Phase II was expected to meet FWS’s “no-net\\nloss standard” for local breeding eagles. BIA determined\\nthat all ridgeline turbines could, with certain mitigation\\nmeasures, be constructed in a way that met that criteria. And\\nit further determined that the “primary period of risk” occurs\\nat certain turbines and decided to limit daytime operations of\\nthose turbines. Finally, BIA meaningfully consulted with\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 11\\n\\nFWS by hearing comments from FWS throughout the\\nprocess and relying on FWS protocols for BIA’s study of the\\nrisk to eagles. BIA was not required to explain why it did\\nnot adopt a mitigation measure that it did in fact follow.\\n\\n Similarly, we reject Plaintiffs’ related argument that BIA\\nshould have explained why its ROD found no significant\\nimpacts to eagles, even though the EIS had concluded that\\nthe entire project would impact the eagles. There is no\\ndiscrepancy: the EIS considered whether the entire project\\nwould have any impact on eagles, whereas the Supplemental\\nProtection Plan considered whether Phase II would have\\nsignificant impacts, taking into account the Supplemental\\nProtection Plan’s mitigation measures and analysis.\\n\\n B\\n\\n An EIS must evaluate “all ‘reasonable [and] feasible’\\nalternatives in light of the ultimate purposes of the project.”\\nProtect Our Communities I, 825 F.3d at 580 (quoting City of\\nCarmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142,\\n1155 (9th Cir. 1997)). Here, the EIS considered five action\\nalternatives in light of the purpose to “facilitate the timely\\ndevelopment of [the Tribe’s] wind and solar energy\\nresources through tribal renewable energy projects.” Four\\nalternatives contemplated construction of all turbines, with\\nother changes to the transmission facilities. The fifth\\nalternative eliminated about half of the turbines, including\\nall of the Phase II turbines. Plaintiffs contend that this\\nanalysis was deficient because it did not consider an\\nalternative where only some of the Phase II turbines were\\nauthorized. BIA responds that Plaintiffs failed to exhaust\\nthis argument, and that, in any event, BIA satisfied the\\nrequirement to consider reasonable alternatives.\\n\\f12 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\n 1\\n\\n Plaintiffs “must structure their participation” in the\\nagency’s decisionmaking process so as to “alert[] the agency\\nto the parties’ position and contentions, in order to allow the\\nagency to give the issue meaningful consideration.” Barnes\\nv. U.S. Dep’t of Transp., 655 F.3d 1124, 1132 (9th Cir. 2011)\\n(quoting Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764\\n(2004)). Otherwise, the issue is waived. Id. 1\\n\\n To determine whether this requirement is met, we are\\nguided by its purpose, which is “to permit administrative\\nagencies to utilize their expertise, correct any mistakes, and\\navoid unnecessary judicial intervention in the process.”\\nLands Council v. McNair, 629 F.3d 1070, 1076 (9th Cir.\\n2010). The issue need not have been raised “using precise\\nlegal formulations, as long as enough clarity is provided that\\nthe decision maker understands the issue raised.” Id. The\\nagency simply must have “sufficient notice . . . to afford it\\nthe opportunity to rectify the violations that the plaintiffs\\nalleged.” Native Ecosystems Council v. Dombeck, 304 F.3d\\n886, 899 (9th Cir. 2002).\\n\\n Generally, “[w]e will not invoke the waiver rule . . . if an\\nagency has had an opportunity to consider the issue . . . even\\nif the issue was considered sua sponte by the agency or was\\nraised by someone other than the petitioning party.”\\nPortland Gen. Elec. Co., 501 F.3d at 1024; see also\\n‘Ilio‘ulaokalani Coal. v. Rumsfeld, 464 F.3d 1083, 1092 (9th\\n\\n 1\\n “While the principle has sometimes been phrased in terms of\\nstanding or exhaustion, see Marathon Oil Co. v. United States, 807 F.2d\\n759, 767–68 (9th Cir. 1986); Kunaknana v. Clark, 742 F.2d 1145, 1148\\n(9th Cir. 1984), we have made clear that it is best characterized as\\nwaiver.” Portland Gen. Elec. Co. v. Bonneville Power Admin., 501 F.3d\\n1009, 1023 (9th Cir. 2007).\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 13\\n\\nCir. 2006) (issue exhausted where the record was “replete\\nwith evidence that the [agency] recognized the specific\\nshortfall” raised). In the context of an agency’s analysis of\\nalternatives, the Supreme Court has suggested that where no\\none has “identified in their comments any rulemaking\\nalternatives beyond those evaluated” by the agency or\\n“urged [the agency] to consider alternatives,” the issue is\\nwaived. Pub. Citizen, 541 U.S. at 765.\\n\\n Plaintiffs point to several BIA and third-party statements\\nto argue that BIA had an opportunity to rectify any\\ndeficiency in its alternative analysis. Some comments\\nPlaintiffs cite merely highlight the ridgeline turbines’ threat\\nto eagles or urge that the entire project should be abandoned.\\nBut other comments make clear that BIA was aware that a\\ndifferent number of turbines and different siting decisions\\nwere possible and potentially desirable. For example, the\\nmitigation measure discussed above noted the possibility\\nthat “all, none, or part” of Phase II could be authorized. BIA\\nitself acknowledged in a comment on the EIS that “specific\\nturbines could be eliminated if it is determined that risks\\noutweigh benefits.” In an email, an FWS official\\n“recommend[ed] that BLM include an alternative in the\\nNEPA document that allows for flexibility in regards to\\nphasing the project as eagle monitoring information is\\ncollected.”\\n\\n The United States Environmental Protection Agency\\n(“EPA”) encouraged BLM and Tule to “relocate, reduce, or\\neliminate portions of the project footprint that . . . would\\nadversely affect threated, endangered, or sensitive species.”\\nIn a letter addressing BLM’s ROD, the Tribe’s Chairman\\n\\f14 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\nrequested that Tule remove one of the turbines that posed a\\nparticular threat to eagles in the area. 2\\n\\n None of these comments precisely alerted BIA that\\nNEPA might require it to consider an alternative that\\nincluded only some of the ridgeline turbines. But we do not\\nrequire “precise legal formulations.” Lands Council,\\n629 F.3d at 1076. Public Citizen indicates that to preserve\\nan argument that an alternatives analysis is deficient,\\ncomments must merely identify “any rulemaking alternative\\nbeyond those evaluated” or urge the agency “to consider\\nalternatives.” 541 U.S. at 764. Public Citizen did not require\\ncomments that explained the precise legal challenge, that is,\\nthe agency’s “failure to properly consider possible\\nalternatives to the proposed action.” See id. Here,\\ncomments did identify alternatives: for example, EPA\\nsuggested that BLM “eliminate portions of the project\\nfootprint”; the Tribe’s Chairman asked Tule to remove one\\nof the turbines from the project; and BIA itself suggested that\\nspecific turbines could be eliminated. We conclude that the\\nissue is preserved.\\n\\n 2\\n\\n “In order to be adequate, an environmental impact\\nstatement must consider not every possible alternative, but\\nevery reasonable alternative.” Citizens for a Better\\n\\n 2\\n Plaintiffs also highlight comments that arose after the EIS was\\nfinalized. Some precedent suggests that issues must be preserved before\\nthe EIS is finalized. See Cachil Dehe Band of Wintun Indians of Colusa\\nIndian Cmty. v. Zinke, 889 F.3d 584, 604–05 (9th Cir. 2018); N. Idaho\\nCmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1156 &\\nn.2 (9th Cir. 2008); Exxon Mobil Corp. v. EPA, 217 F.3d 1246, 1249 (9th\\nCir. 2000). Because we do not rely on those comments, we do not reach\\nthis issue.\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 15\\n\\nHenderson v. Hodel, 768 F.2d 1051, 1057 (9th Cir. 1985).\\n“The stated goal of a project necessarily dictates the range of\\n‘reasonable’ alternatives . . . .” City of Carmel-by-the-Sea,\\n123 F.3d at 1155. An agency need not consider alternatives\\nthat are “unlikely to be implemented or those inconsistent\\nwith its basic policy objectives.” Seattle Audubon Soc’y v.\\nMoseley, 80 F.3d 1401, 1404 (9th Cir. 1996).\\n\\n We reject Defendants’ argument that Protect Our\\nCommunities I controls this case. There, we held that “the\\nrange of alternatives considered in the EIS was not\\nimpermissibly narrow, as the agency evaluated all\\n‘reasonable and feasible’ alternatives in light of the ultimate\\npurpose of the project.” 825 F.3d at 580. But that holding\\ncannot control this case: that lawsuit was filed before BIA\\nissued its ROD, and we did not address whether BIA’s\\napproval violated NEPA.\\n\\n Nevertheless, we hold that the alternatives analysis was\\nalso sufficient as to BIA’s approval. If we were viewing\\nPhase II as an isolated project, and not as part of a larger\\nwind energy development, we might agree with Plaintiffs\\nthat the alternatives analysis was insufficient. In\\nMuckleshoot Indian Tribe v. United States Forest Service,\\n177 F.3d 800, 813 (9th Cir. 1999) (per curiam), we held that\\nan alternatives analysis was deficient because it “considered\\nonly a no action alternative along with two virtually identical\\nalternatives.” Here, as to the Phase II turbines alone, the EIS\\neffectively considered one no action alternative (alternative\\nfive) and four identical alternatives. No mid-range\\nalternative, such as an alternative contemplating only ten of\\nthe turbines, was considered. If Phase II constituted the\\nentire project, then, Muckleshoot would require us to\\nconclude that the alternatives analysis was deficient.\\n\\f16 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\n We do not think it appropriate, however, to view Phase\\nII as an isolated project. It is not: instead, the twenty Phase\\nII turbines are part of a wind turbine development that\\noriginally included over one hundred turbines, to be built by\\nthe same developer in the same general area but split along\\na jurisdictional line. Although the project was split along a\\njurisdictional line, Phase I and Phase II make up one and the\\nsame project.\\n\\n Indeed, we require agencies to issue a single EIS for\\n“connected, cumulative, and similar actions” like this\\nproject. Dombeck, 304 F.3d at 894 (quoting Wetlands Action\\nNetwork v. U.S. Army Corps of Eng’rs, 222 F.3d 1105, 1118\\n(9th Cir. 2000)). This requirement “prevent[s] an agency\\nfrom ‘dividing a project into multiple “actions,” each of\\nwhich individually has an insignificant environmental\\nimpact, but which collectively have a substantial impact.’”\\nId. We cannot at the same time require agencies to combine\\nactions in order to produce an EIS but turn around and divide\\nthe actions when we evaluate the sufficiency of the\\nalternatives analysis.\\n\\n Viewing the project as a whole, then, the alternatives\\nanalysis was sufficient. Although no mid-range alternative\\nwas considered as to the twenty Phase II turbines, the EIS’s\\nfifth alternative did consider a mid-range alternative for the\\nproject as a whole: construction of 63 out of 128 turbines.\\nIndeed, BLM ultimately approved a configuration with\\nfewer turbines than had been initially proposed.\\n\\n Of course, an analysis of a larger project may not always\\nbe sufficient to satisfy NEPA for a smaller portion of it. In\\nWestern Watersheds Project v. Abbey, 719 F.3d 1035, 1050\\n(9th Cir. 2013), we held that an alternatives analysis was\\nsufficient as to the programmatic EIS, but insufficient as to\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 17\\n\\nthe site-specific environmental assessment. 3 “Site-specific\\nimpacts,” we reasoned, must be evaluated once the “critical\\ndecision has been made to act on site development.” Id.\\nat 1049 (quoting Friends of Yosemite Valley v. Norton,\\n348 F.3d 789, 800 (9th Cir. 2003), opinion clarified, 366\\nF.3d 731 (9th Cir. 2004)). Because neither document fully\\nconsidered a mid-range alternative, the agency was deprived\\nof “information on the environmental impacts of the\\nunconsidered alternatives.” Id. at 1050.\\n\\n Similarly, in Muckleshoot, we held that the agency’s\\nprior consideration of an issue could not save a deficient EIS\\nbecause the earlier discussion did not “account for the\\nspecific impacts” of the project at issue. 177 F.3d at 810;\\nsee also Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land\\nMgmt., 387 F.3d 989, 998 (9th Cir. 2004). We likewise held\\nthat where an agency failed to consider alternatives to a\\nproject in a programmatic EIS, it “had an obligation to\\nconsider such alternatives in the [site-specific] EIS.”\\n‘Ilio‘ulaokalani Coal., 464 F.3d at 1092.\\n\\n This line of precedent makes sense: a site-specific\\nproject demands site-specific analysis. Agencies cannot rely\\non a general discussion in a programmatic EIS or other\\ndocument to satisfy its NEPA obligations for a site-specific\\naction. But here, the EIS did address the site-specific action.\\nThe details of the project were known, and the EIS\\nspecifically addressed its environmental impacts and\\nconsidered a mid-range alternative. Unlike the Forest\\nService in Muckleshoot and the BLM in Klamath-Siskiyou,\\nthe BIA is not “attempt[ing] to save” a deficient analysis by\\n\\n 3\\n A programmatic EIS “is used to assess the environmental impacts\\nof a proposed action that is broad in reach, such as a program, plan, or\\npolicy . . . .” 45 C.F.R. § 900.207.\\n\\f18 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\nreference to a more general document. Klamath-Siskiyou,\\n387 F.3d at 998.\\n\\n Plaintiffs point out that the EIS appeared to contemplate\\nfurther analysis of the environmental impacts of the Phase II\\nturbines in particular. But an agency’s desire for even more\\ninformation about the environmental impacts of a project\\ndoes not mean that the alternatives were not adequately\\nanalyzed. Here, they were.\\n\\n Finally, we note that we do not confront circumstances\\nwhere Defendants were entirely unaware of the possibility\\nof alternatives to the twenty-turbine configuration. Our\\nprecedent suggests that a non-NEPA document cannot cure\\nthe deficiencies of an EIS. See Muckleshoot, 177 F.3d at\\n811. But Plaintiffs’ suggestion that BIA failed to consider\\nany alternatives “that entailed building some but not all of\\nthe proposed ridgeline turbines,” either in the EIS or in “any\\nsubsequent document” is inaccurate. The EIS specifically\\ncontemplated that “all, none or part of the second portion of\\nthe project would be authorized.” Subsequent to the\\npromulgation of the EIS, the Supplemental Protection Plan\\nconsidered seven plans in which the turbines most\\nthreatening to the eagle population would be curtailed during\\ntimes of high eagle activity. These plans were similar to\\nconsideration of a less-than-full build. In addition, in\\nresponse to a comment to the Supplemental Protection Plan\\nraised by FWS asking BIA to consider a build of only the six\\nsouthernmost turbines, BIA explained why this mid-range\\nalternative would not have been practical, noting that\\n“development of only 6 turbines would not be sufficient to\\njustify the investment in infrastructure to access the\\n6 turbines which would result in no revenue source for the\\n[Tribe].” Although we do not suggest that post-EIS analysis\\ncan serve as a substitute for EIS reasonable alternative\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 19\\n\\nanalysis, these documents make it plain that BIA did not\\nsimply ignore the issue.\\n\\n C\\n\\n Next, Plaintiffs argue that BIA should have prepared a\\nsupplemental EIS (“SEIS”) to analyze information that arose\\nafter the EIS was published.\\n\\n In general, NEPA requires agencies to prepare an SEIS\\nwhen “[t]here are significant new circumstances or\\ninformation relevant to environmental concerns and bearing\\non the proposed action or its impacts.” 40 C.F.R.\\n§ 1502.9(c)(ii). We have held that NEPA does not require\\nagencies to prepare an SEIS “every time new information\\ncomes to light” but instead requires agencies to “maintain a\\n‘hard look’ at the impact of agency action when the ‘new\\ninformation is sufficient to show that the remaining action\\nwill affect the quality of the human environment in a\\nsignificant manner or to a significant extent not already\\nconsidered.’” League of Wilderness Defs./Blue Mountains\\nBiodiversity Project v. Connaughton, 752 F.3d 755, 760 (9th\\nCir. 2014) (quoting Marsh v. Or. Nat. Res. Council, 490 U.S.\\n360, 373–74 (1989)).\\n\\n Plaintiffs assert five grounds in support of their\\nargument, but we are not persuaded that additional\\nenvironmental review was required. First, Plaintiffs contend\\nthat information in the Supplemental Protection Plan, along\\nwith third-party comments on that plan, met the “new and\\nsignificant” threshold requiring an SEIS. Whether new\\ninformation is sufficiently significant to necessitate an SEIS\\n“turns on the value of the new information to the still\\npending decisionmaking process.” Marsh, 490 U.S. at 374.\\n\\f20 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\n Plaintiffs specify several new pieces of information that\\nthey say triggered BIA’s duty to prepare an SEIS. New\\nsurveys described in the Supplemental Protection Plan\\nrevealed at least eight occupied golden eagle territories\\nwithin ten miles of Phase II, two at which young had been\\nsuccessfully produced, and two at which eaglets failed to\\nfledge. The Plan also indicated that the nests nearest Phase\\nII continued to be active, and that the flight path of its\\nfledglings overlapped with all of the turbine sites. It further\\nrevealed that no eagle territory produced young in every\\nyear. In addition, new flight surveys showed that 73 of 123\\ndocumented eagle flight paths traversed Phase II. Finally,\\ncomments from FWS raised concerns about BIA’s lack of\\nexpertise on potential impacts to eagles, as well as the\\nimportance of the nearby nest to eagle populations in the\\nareas and to FWS’s plans.\\n\\n Although some details are more specific than\\ninformation discussed in the EIS, the facts identified by\\nPlaintiffs are not both new and significant. The EIS\\nrecognizes the presence of eagle territories in the area, the\\nmovement of those eagles from different territories in\\ndifferent years with varying levels of reproductive success,\\nand the existence of the territory nearest Phase II. The EIS\\nalso discloses that eagles traverse the Phase II ridgeline.\\nThroughout, the EIS acknowledges that the project poses a\\nthreat to eagles. Although aspects of FWS’s opposition\\ncould be characterized as “new,” it does not suggest the\\nproject will impact the environment “to a significant extent\\nnot already considered.” Marsh, 490 U.S. at 374. We agree\\nwith the district court that the new information is not\\nsignificant because “it merely confirmed concerns that the\\n2011 EIS already articulated and considered.” Protect Our\\nCommunities Found. v. Black, 240 F. Supp. 3d 1055, 1067\\n(S.D. Cal. 2017).\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 21\\n\\n Second, Plaintiffs argue that BIA cannot rely on the EIS\\n(without supplemental review) because the EIS “rejected”\\nthe Phase II turbines.\\n\\n In Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d\\n549, 559 (9th Cir. 2006), we held that an agency could not\\nrely on an EIS to take an action where the EIS\\n“unequivocal[ly] reject[ed]” that action. We reasoned that\\nan EIS cannot supply the requisite environmental analysis to\\nsupport a decision directly contrary to its conclusions. Id.\\nIn that case, we required the agency to conduct supplemental\\nenvironmental review. Id.\\n\\n But here, the EIS did not “reject” the Phase II turbines.\\nInstead, it determined that the ridgeline turbines posed\\nparticular risks to the eagles and that further study was\\nrequired to understand and potentially mitigate those risks.\\nThe EIS fully contemplated and considered potential\\nenvironmental impacts of the Phase II turbines, and the BIA\\ntook steps to mitigate risks.\\n\\n Third, Plaintiffs argue that the new information required\\nan SEIS because it met the criteria for “significance” under\\nNEPA regulations. See 40 C.F.R. § 1508.27(b).\\nSpecifically, Plaintiffs contend that new information showed\\nthat Phase II is (1) close to cultural resources and\\necologically critical areas; (2) highly controversial;\\n(3) related to other actions with individually insignificant\\nbut cumulatively significant impacts, i.e., other energy\\nprojects in the area that threaten eagles; and (4) in violation\\nof federal law. But the EIS had already addressed (1) the\\nimpact to eagles, and the cultural importance of the eagles;\\n(2) FWS’s comments critical of BIA’s conclusions and\\nanalysis; (3) additional impacts to eagles from other\\ndevelopments; and (4) FWS’s concern that Phase II will not\\nqualify for a take permit under the BGEPA. In short, any\\n\\f22 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\nadditional information did not raise new issues that were\\n“not already considered” in the EIS. Marsh, 490 U.S. at 374.\\n\\n Fourth, Plaintiffs argue that BIA’s failure to prepare\\nadditional environmental analysis violated the APA’s “hard\\nlook” requirement because it did not adequately respond to\\nthe comments of FWS and CDFW. In Friends of the\\nClearwater v. Dombeck, we said that “[a]n agency that has\\nprepared an EIS cannot simply rest on the original\\ndocument”; instead, it “must be alert to new information that\\nmay alter the results of its original environmental analysis,\\nand continue to take a ‘hard look at the environmental effects\\nof [its] planned action.’” 222 F.3d 552, 557 (9th Cir. 2000)\\n(quoting Marsh, 490 U.S. at 371). 4 We conclude that BIA\\ndid, in fact, continue to maintain a hard look at the\\nenvironmental impacts, as is shown by the extensive\\ndiscussion on the impacts to golden eagles in the ROD and\\nSupplemental Protection Plan. We hold that BIA satisfied\\nthe “hard look” requirement.\\n\\n Fifth and finally, Plaintiffs contend that Defendants were\\nrequired to, but did not, assess the significance of the new\\ninformation. Agencies must evaluate new information’s\\nsignificance and make a reasoned determination of whether\\n 4\\n Plaintiffs cite League of Wilderness Defenders, 309 F.3d at 1192,\\nfor the proposition that “the apparently unanswered concerns of a sister\\nagency simply do not measure up to the requirements in this Circuit for\\na ‘hard look.’” But Plaintiffs take that quote out of context; what the\\ncourt says is that “the lack of any analysis” whatsoever of an\\nenvironmental impact, “coupled with contradictory statements in the\\nProject Guidelines, EIS, Record of Decisions, and the apparently\\nunanswered concerns of a sister agency” do not measure up to our hard\\nlook requirements. Id. (emphases added). Here, even if BIA left some\\nof FWS’s concerns unanswered, it did so in a context where, in contrast\\nto Forsgren, its EIS, ROD, and Supplemental Protection Plan had\\nthoroughly considered the key issues that the other agency raised.\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 23\\n\\nit is of such significance as to require a supplemental EIS.\\nSee id. at 558. In Dombeck, we held that an agency erred\\nwhere there was “no evidence in the record” that the agency\\neven “considered whether [the interim designation of seven\\nnew sensitive species was] sufficiently significant to require\\npreparation of [a supplemental EIS].” Id. But in Great Old\\nBroads for Wilderness v. Kimbell, 709 F.3d 836, 855 (9th\\nCir. 2013), we held that, at least where a change in project\\ndesign is at issue, an ROD that states that the EIS “fully\\nanalyzed” the relevant questions satisfied the requirement to\\nassess the need for supplemental analysis.\\n\\n Here, the ROD states that the EIS “included an analysis\\nof all environmental issues associated with construction and\\noperation” of Phase II turbines. As discussed above, no new\\nenvironmental issues, such as a new sensitive species\\ndesignation, arose in the interim. Moreover, BIA addressed\\nalmost all of the purportedly new information in the ROD,\\nthe Supplemental Protection Plan, and its response to\\ncomments, even if it never stated that the information was\\nnot “significant” and therefore did not require more analysis.\\n\\n D\\n\\n Plaintiffs’ final two challenges to BIA’s decision\\nconcern the agency’s decision not to require Tule to obtain a\\nBGEPA permit from FWS. FWS recommended that BIA\\ncondition its approval on Tule obtaining a BGEPA permit\\nfrom FWS. FWS pointed out that requiring a permit before\\napproval would allow Tule to consider different turbine\\nsiting designs in response to BGEPA permit requirements\\nbefore construction began on the turbines—before it was too\\nlate to make necessary modifications to comply. FWS also\\nsuggested that the design BIA approved would “not likely\\nmeet the conservation standard” for golden eagles and would\\nnot likely receive a BGEPA permit.\\n\\f24 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\n Despite FWS’s concerns, BIA only required Tule to\\napply for a permit before it began operation of the turbines.\\nBIA did not require Tule to obtain a permit before Tule\\nbegan construction, as the FWS had urged BIA to do.\\nNevertheless, the ROD explicitly noted that Tule “must\\ncomply with all applicable Federal laws, including any\\nrequirements for an eagle take permit under the BGEPA.”\\nAnd BIA warned that “any take of eagles caused by the\\nProject, prior to the issuance of an eagle take permit,\\nconstitutes a violation of the [Eagle Act] that the FWS may\\nrefer to the Department of Justice for enforcement.”\\n\\n We firmly reject Plaintiffs’ false contention, pressed at\\noral argument, that BIA intimated that Tule could comply\\nwith BGEPA merely by applying for a permit. To the\\ncontrary, the ROD said that Tule would comply with BIA’s\\nrequirements for approval by applying for a permit. No\\nperson could seriously suggest that Tule would comply with\\nBGEPA’s requirement merely by applying for a permit. To\\nthe contrary, the ROD confirms that Tule must comply with\\n“any requirements for an eagle take permit under the\\nBGEPA” and spells out the consequences of noncompliance.\\nIf Tule were to violate the BGEPA, it would do so at the risk\\nof civil and criminal penalties.\\n\\n 1\\n\\n We next address Plaintiffs’ argument that BIA’s decision\\nwas not in accordance with the law. Under the APA, federal\\nagency action is invalid if it is “not in accordance with the\\nlaw.” 5 U.S.C. § 706(2)(A). Applying this rule, we have\\ninvalidated agency action that sanctioned unlawful conduct\\nby third parties. See, e.g., Anderson v. Evans, 371 F.3d 475,\\n480 (9th Cir. 2004) (holding agency erred by permitting\\nunlawful hunting of whale in reliance on an incorrect legal\\ninterpretation); Wilderness Soc’y v. U.S. Fish & Wildlife\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 25\\n\\nServ., 353 F.3d 1051, 1067 (9th Cir. 2003) (en banc)\\n(holding agency erred by permitting “commercial\\nenterprise” in area where commercial activities were\\nprohibited by statute).\\n\\n But we explained in Protect Our Communities I that “the\\nAPA does not target regulatory action by [an agency] that\\npermits a third-party grantee like Tule to engage in otherwise\\nlawful behavior, and only incidentally leads to subsequent\\nunlawful action by that third party.” 825 F.3d at 586. We\\nnoted that “BLM’s right-of-way did not sanction or\\nauthorize the taking of migratory birds without a permit; it\\nauthorized the development of a wind-energy facility.” Id.\\nat 587. We reasoned that “[w]ithout further indication of its\\ninvolvement in the putative violation, we cannot hold the\\nBLM complicit in future unlawful activity, separately\\ncommitted by a grantee, through a mere failure to intervene\\nat the permitting stage.” Id.\\n\\n That prior holding controls this case. Plaintiffs attempt\\nto distinguish Protect Our Communities I on the basis that\\nthe Phase II turbines pose a far greater threat to golden eagles\\nthan the Phase I turbines. But our reasoning in Protect Our\\nCommunities I did not depend on the degree of risk to eagles.\\nInstead, we emphasized that BLM had not authorized the\\ntake of eagles without securing permission from FWS. Id.\\nat 587 (noting that BLM “has not sanctioned or encouraged\\nan unlawful course of action by Tule,” and instead it “has\\ndone the opposite” by requiring compliance with “all\\napplicable laws and regulations”). Protect Our\\nCommunities I forecloses Plaintiffs’ challenge to BIA’s\\ndecision: because BIA, like BLM, required Tule to apply for\\na permit, and required Tule to comply with all applicable\\nlaws, BIA’s authorization was not in any way in violation of\\nthe law.\\n\\f26 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\n 2\\n\\n Plaintiffs further contend that BIA acted arbitrarily and\\ncapriciously by not conditioning its approval of Phase II on\\nTule obtaining a permit, especially where FWS had urged\\nBIA to do so.\\n\\n Under the arbitrary and capricious standard, “we are not\\nto substitute [our] judgment for that of the agency.” State\\nFarm, 463 U.S. at 43. A decision is arbitrary and capricious\\nonly if it “entirely failed to consider an important aspect of\\nthe problem, offered an explanation for its decision that runs\\ncounter to the evidence before the agency, or is so\\nimplausible that it could not be ascribed to a difference in\\nview or the product of agency expertise.” Id.\\n\\n We agree that for practical reasons it will be best for Tule\\nto seek a permit early in the construction process before it is\\ntoo late to make modifications that the BGEPA may require.\\nBut as we emphasized in Protect Our Communities I, Tule’s\\ncompliance with the BGEPA is between Tule and FWS.\\n825 F.3d at 588 (“BLM . . . is neither statutorily tasked with\\npolicing third-party compliance with the Eagle Act nor\\nresponsible for violations that might be independently\\ncommitted by grantees, such as Tule.”); see also 74 Fed.\\nReg. 44,843 (Sep. 11, 2009) (FWS regulation explaining that\\n“[p]ersons and organizations that obtain licenses, permits,\\ngrants, or other such services from government agencies are\\nresponsible for their own compliance with the Eagle Act and\\nshould individually seek permits”).\\n\\n Because compliance is Tule’s responsibility, BIA’s\\ndecision not to require the grant of the permit was not\\nirrational. Indeed, BIA had a sensible reason not to\\ncondition its approval on Defendants’ obtaining a permit. As\\nBIA explained in its ROD, FWS’s guidelines for BGEPA\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 27\\n\\npermits were “not yet final” at the time BIA intended to\\nfinalize its approval. Rather than wait for FWS to finalize\\nits guidelines and issue (or deny) a permit, BIA decided to\\nget its own approval out of the way—without interfering\\nwith FWS’s administration of the BGEPA, and ensuring that\\nTule was well aware of its obligations under BGEPA and\\nother federal laws. BIA’s decision not to condition its\\napproval on prior acquisition of a permit from another\\nagency was not arbitrary or capricious.\\n\\n IV\\n\\n What is troubling about this case is that it appears that, if\\nand when the project proceeds, some eagles may die or have\\ntheir nests impaired diminishing reproduction. But the\\nprotections given by our environmental laws are not\\nabsolute. NEPA doesn’t control any substantive result but\\nrather requires procedural protections to ensure that a “hard\\nlook” was given to reasonable alternatives. The Endangered\\nSpecies Act doesn’t absolutely prohibit all deaths of\\nendangered species caused by development but rather\\nprohibits the incidental taking of endangered creatures’ lives\\nif done without a permit that specifically allows the\\nincidental take. The Bald and Golden Eagle Protection Act\\ndoesn’t outlaw every killing of the eagle, just take without a\\npermit.\\n\\n Of course, Tule must comply with BGEPA at all times\\nduring the construction and operation of the project. While\\nwe recognize the legitimate concerns about the well-being of\\nprotected eagles raised by Plaintiffs and FWS, we are\\npersuaded that those concerns can be addressed through the\\nBGEPA permitting process.\\n\\n At the same time, there are benefits to the Tribe and to\\nthe United States that will come from the project, and BIA\\n\\f28 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\nhas a special concern to advance the interests of the Indian\\nnations under its jurisdiction. While that would not justify\\ndisregarding environmental laws when clearly applicable,\\nsee, e.g., Anderson, 371 F.3d at 494–502 (holding that Indian\\nnation should be enjoined from hunting whales absent a\\npermit under the MMPA), the interests of the Ewiiaapaayp\\nBand of Kumeyaay Indians weigh in favor of the Tribe in\\nthis close case involving potentially competing values.\\n\\n We therefore conclude that in the total circumstances of\\nthis case the EIS analysis was sufficient to satisfy NEPA. So\\nfar as the demands of NEPA and the APA are concerned,\\nthis project can proceed.\\n\\n AFFIRMED.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4440671/\", \"author_raw\": \"GOULD, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"RONALD M GOULD"},"judge2":{"kind":"string","value":"MARY H MURGUIA"},"judge3":{"kind":"string","value":"CAROL BAGLEY AMON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4663418/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Protect Our Communities v. Darryl Lacounte\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nPROTECT OUR COMMUNITIES No. 17-55647\nFOUNDATION; DAVID HOGAN; NICA\nKNITE, D.C. No.\n Plaintiffs-Appellants, 3:14-cv-02261-\n JLS-JMA\n v.\n\nDARRYL LACOUNTE, Acting OPINION\nDirector, Bureau of Indian Affairs;\nDAVID L. BERNHARDT, Secretary,\nDepartment of the Interior; TARA\nKATUK MACLEAN SWEENEY,\nAssistant Secretary for Indian\nAffairs; AMY DUTSCHKE, Regional\nDirector, Bureau of Indian Affairs\nPacific Region; JOHN RYDZIK, Chief,\nBureau of Indian Affairs Pacific\nRegion Division of Environmental\nCultural Resources Management &\nSafety,\n Defendants-Appellees,\n\nTULE WIND, LLC; EWIIAAPAAYP\nBAND OF KUMEYAAY INDIANS,\n Intervenor-Defendants-\n Appellees.\n\f2 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\n\n Appeal from the United States District Court\n for the Southern District of California\n Janis L. Sammartino, District Judge, Presiding\n\n Argued and Submitted November 14, 2018\n Pasadena, California\n\n Filed September 23, 2019\n\n Before: Ronald M. Gould and Mary H. Murguia, Circuit\n Judges, and Carol Bagley Amon, * District Judge.\n\n Opinion by Judge Gould\n\n\n SUMMARY **\n\n\n Environmental Policy\n\n The panel affirmed the district court’s summary\njudgment in favor of Bureau of Indian Affairs (“BIA”)\nofficials, Tule Wind, LLC and Ewiiaapaayp Band of\nKumeyaay Indians in an action challenging the BIA’s\napproval of an industrial-scale wind facility in Southern\nCalifornia.\n\n Tule plans to construct eighty-five wind turbines, and the\nproject was split into two phases. Phase I concerned sixty-\n\n *\n The Honorable Carol Bagley Amon, United States District Judge\nfor the Eastern District of New York, sitting by designation.\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 3\n\nfive turbines constructed on federal land, requiring approval\nfrom the Bureau of Land Management (“BLM”). Phase II\nconcerned twenty turbines on the Tribe’s reservation,\nrequiring approval from the BIA, which serves as a trustee\nfor the Tribe. BLM prepared an environmental impact\nstatement (“EIS”) under the National Environmental Policy\nAct (“NEPA”) that covered both phases. BIA approved\nPhase II in a Record of Decision that relied on BLM’s EIS\nand Tule’s Supplemental Protection Plan.\n\n The panel considered plaintiffs’ contention that BLM’s\nreliance on the EIS was improper because BIA did not\nexplain its decision not to implement one of the EIS’s listed\nmitigation measures. The panel agreed with the defendants\nthat the BIA did follow the command of this mitigation\nmeasure, and for that reason, did not need to explain its\ndecision not to implement it.\n\n The panel next considered plaintiffs’ contention that the\nEIS’s consideration of five action alternatives was deficient\nbecause it did not consider an alternative where only some\nof the Phase II turbines were authorized. The panel held that\nthe issue was properly preserved, and not waived. The panel\nfurther held that viewing the project as a whole, the\nalternatives analysis was sufficient.\n\n Plaintiffs argued that BIA should have prepared a\nsupplemental EIS to analyze information that arose after the\nEIS was published. The panel considered five grounds\nasserted by plaintiffs in support of their argument, and\nconcluded that additional environmental review was not\nrequired.\n\n The panel rejected plaintiffs’ challenges to BIA’s\ndecision not to require Tule to obtain an eagle take permit\n\f4 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\n\nunder the Bald and Golden Eagle Protection Act (“BGEPA”)\nfrom the U.S. Fish and Wildlife Service. BIA did not require\nTule to obtain a permit before Tule began construction as the\nService had urged, and only required Tule to apply for a\npermit before it began operation of the turbines. The panel\nrejected plaintiffs’ false contention that BIA intimated that\nTule could comply with BGEPA merely by applying for a\npermit. The panel held that BIA’s authorization was not in\nany way a violation of the law because the BIA, like the\nBLM, required Tule to apply for a permit and required Tule\nto comply with all applicable laws. In addition, the panel\nheld that the BIA did not act arbitrarily and capriciously by\nnot conditioning its approval of Phase II on Tule obtaining a\npermit.\n\n The panel concluded that in the total circumstances of\nthis case, the EIS analysis was sufficient to satisfy NEPA,\nand so far as the demands of NEPA and the Administrative\nProcedure Act were concerned, this project could proceed.\n\n\n COUNSEL\n\nWilliam S. Eubanks II (argued), Meyer Glitzenstein &\nEubanks LLP, Fort Collins, Colorado; William N. Lawton,\nMeyer Glitzenstein & Eubanks LLP ,Washington, D.C.; for\nPlaintiffs-Appellants.\n\nAllen M. Brabender (argued), Brian Collins, and John H.\nMartin, Attorneys; Eric Grant, Deputy Assistant Attorney\nGeneral; Jeffrey H. Wood, Acting Assistant Attorney\nGeneral; Environment & Natural Resources Division,\nUnited States Department of Justice, Washington, D.C.; for\nDefendants-Appellees.\n\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 5\n\nJeffrey Durocher, Portland, Oregon; for Intervenor-\nDefendant-Appellee Tule Wind, LLC.\n\nBradley G. Bledsoe Downes, Bledsoe Downes PC,\nChandler, Arizona, for Intervenor-Defendant-Appellee\nEwiiaapaayp Band of Kumeyaay Indians.\n\n\n OPINION\n\nGOULD, Circuit Judge:\n\n Plaintiffs Protect Our Communities Foundation, David\nHogan, and Nica Knite (“Plaintiffs”) challenge the decision\nof the Bureau of Indian Affairs (“BIA”) to approve an\nindustrial-scale wind facility in Southern California. The\ndistrict court granted summary judgment to Defendant BIA\nofficials, Defendant-Intervenor Tule Wind, LLC (“Tule”),\nand Defendant-Intervenor Ewiiaapaayp Band of Kumeyaay\nIndians (“the Tribe”) (collectively, “Defendants”). We\naffirm.\n\n I\n\n Tule plans to construct eighty-five wind turbines about\nsixty miles east of San Diego, California. During the\nplanning and approval process, the project was split into two\nphases. Phase I concerned sixty-five turbines constructed on\nfederal land in a valley and required approval from the\nBureau of Land Management (“BLM”), which is responsible\nfor granting rights-of-way for use of federal lands. Phase II\nconcerned twenty turbines on the Tribe’s reservation on\nridgelines above the valley. Phase II required approval from\nBIA, which serves as a trustee for federally recognized\nIndian tribes.\n\f6 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\n\n Before BLM and BIA approved the respective phases,\nthe agencies were required to analyze environmental impacts\nunder the National Environmental Protection Act (“NEPA”),\n42 U.S.C. §§ 4321 et seq. BLM prepared an environmental\nimpact statement (“EIS”) that covered both phases.\n\n Among other environmental impacts, the EIS expressly\nidentified an “unavoidable adverse impact” to golden eagles\nfrom collisions with the turbines and loss of breeding\nterritory, impacts that were especially acute for the Phase II\nturbines. The EIS considered five project alternatives for the\nTule project, including one that would eliminate 63 turbines,\nincluding all of the Phase II turbines, from the 128 that were\noriginally proposed.\n\n For Phase I, Tule drafted a Project-Specific Avian and\nBat Protection Plan (“Protection Plan”) that described\npossible means of mitigating bird and bat impacts in detail.\nRelying on that plan and the EIS, BLM approved Phase I.\nImportantly, that approval survived review in this court. See\nProtect Our Communities Found. v. Jewell, 825 F.3d 571,\n577 (9th Cir. 2016) [hereinafter “Protect Our Communities\nI”].\n\n For Phase II, Tule drafted a Supplemental Project-\nSpecific Avian and Bat Protection Plan (“Supplemental\nProtection Plan”) that included updated eagle surveys and\ndescribed measures to document and avoid bird impacts.\nThe Supplemental Protection Plan concluded that, with\nmitigation measures, Phase II could “meet the current no-net\nloss standard for local breeding eagle populations.” BIA\nmade the Supplemental Protection Plan available for public\ncomment. The United States Fish and Wildlife Service\n(“FWS”), among other entities, criticized the Supplemental\nProtection Plan’s methodologies and conclusion.\n\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 7\n\n BIA approved Phase II in a Record of Decision (“ROD”)\nthat relied on BLM’s EIS and Tule’s Supplemental\nProtection Plan. The ROD adopted several mitigation\nmeasures designed to avoid impacts to golden eagles. These\nmitigation measures included a requirement that before\noperating, Tule had to apply for an eagle take permit under\nthe Bald and Golden Eagle Protection Act (“BGEPA”),\n16 U.S.C. § 668.\n\n Plaintiffs challenged BIA’s approval in the district court,\nasserting three alleged errors. The district court granted\nDefendants’ motion for judgment on the pleadings on two of\nthe claimed errors and granted Defendants’ motions for\nsummary judgment on the third. Plaintiffs timely appealed.\n\n II\n\n A district court’s grant of summary judgment is reviewed\nde novo. United States v. City of Tacoma, 332 F.3d 574, 578\n(9th Cir. 2003). Dismissal on the pleadings pursuant to Rule\n12(c) is also reviewed de novo. See Daewoo Elecs. Am. Inc.\nv. Opta Corp., 875 F.3d 1241, 1246 (9th Cir. 2017).\n\n Under the Administrative Procedure Act (“APA”), we\nreview agency action to determine whether it is “arbitrary,\ncapricious, an abuse of discretion, or otherwise not in\naccordance with law.” 5 U.S.C. § 706(2)(A). An agency\nacts in an “arbitrary and capricious” manner when it “relie[s]\non factors which Congress has not intended it to consider,\nentirely fail[s] to consider an important aspect of the\nproblem, offer[s] an explanation for its decision that runs\ncounter to the evidence before the agency, or is so\nimplausible that it c[an]not be ascribed to a difference in\nview or the product of agency expertise.” Motor Vehicle\nMfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,\n43 (1983).\n\f8 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\n\n As a general rule, we will “uphold agency decisions so\nlong as the agencies have ‘considered the relevant factors\nand articulated a rational connection between the factors\nfound and the choices made.’” City of Sausalito v. O’Neill,\n386 F.3d 1186, 1206 (9th Cir. 2004) (quoting Selkirk\nConservation All. v. Forsgren, 336 F.3d 944, 953–54 (9th\nCir. 2003)).\n\n In addition to APA challenges, Plaintiffs raise challenges\nunder NEPA. NEPA requires agencies to prepare an EIS for\n“major Federal actions significantly affecting the quality of\nthe human environment.” 42 U.S.C. § 4332(2)(C). The EIS\nmust contain, among other things, a detailed discussion of\n“the environmental impact of the proposed action,” “adverse\nenvironmental effects which cannot be avoided,”\n“alternatives to the proposed action,” and possible\nmitigation measures. Id.; 40 C.F.R. § 1502.16. If multiple\nfederal agencies are “involved in the same action” or\n“involved in a group of actions directly related to each\nother,” then “[a] lead agency shall supervise” the EIS\npreparation, or the agencies may act as joint lead agencies.\n40 C.F.R. § 1501.5.\n\n After finalizing the EIS, the agency must select a course\nof action within the range of alternatives analyzed and issue\nan ROD. Id. § 1505.1. The ROD explains why the agency\nchose a particular alternative, whether all practical means for\navoiding or minimizing environmental harm have been\nadopted, and, if not, why not. See id. § 1505.2.\n\n NEPA requires these procedural steps but does not\nrequire an agency to reach any particular result. Hells\nCanyon All. v. U.S. Forest Serv., 227 F.3d 1170, 1177 (9th\nCir. 2000). Rather, compliance with NEPA involves the\napplication of a “rule of reason,” which involves “a\npragmatic judgment whether the EIS’s form, content, and\n\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 9\n\npreparation foster both informed decision-making and\ninformed public participation.” Churchill Cty. v. Norton,\n276 F.3d 1060, 1071 (9th Cir. 2001) (quoting California v.\nBlock, 690 F.2d 753, 761 (9th Cir. 1982)).\n\n Nevertheless, a reviewing court will ensure that the\nagency took a “hard look” at the EIS to determine whether it\n“contains a reasonably thorough discussion of the significant\naspects of the probable environmental consequences.” Id. at\n1071–72 (quotation marks omitted). NEPA favors\n“coherent and comprehensive up-front environmental\nanalysis to ensure . . . that the agency will not act on\nincomplete information, only to regret its decision after it is\ntoo late to correct.” Id. at 1072–73 (quotation marks\nomitted).\n\n III\n\n A\n\n BIA relied on BLM’s EIS, which addressed both Phase\nI and Phase II, to satisfy its NEPA review requirement. See\n42 U.S.C. § 4332(2)(C). Plaintiffs contend that that reliance\nwas improper because BIA did not explain its decision to not\nimplement one of the EIS’s listed mitigation measures, MM\nBIO-10f. That measure provides:\n\n Authorize construction of portions of the\n project based on the results of behavioral and\n population studies of local golden eagles:\n Construction of [Phase II] would occur at\n those turbine locations that show reduced risk\n to the eagle population following analysis of\n detailed behavior studies of known eagles in\n the vicinity of the Tule Wind project.\n Pending the outcome of eagle behavior\n\f10 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\n\n studies, all, none, or part of the second\n portion of the project would be\n authorized. . . . The final criteria determining\n the risk each location presents to eagles will\n be determined [by BIA] in consultation with\n the required resource agencies, tribes, and\n other relevant permitting agencies . . . .\n Turbine locations exceeding the acceptable\n risk levels to golden eagles based on these\n final criteria will not be authorized for\n construction.\n\n Defendants respond that in fact BIA did follow the\ncommand of this mitigation measure and, for that reason, did\nnot need to explain its decision not to implement it. We\nagree. First, BIA considered whether to “authorize\nconstruction of portions of the project,” by considering each\nturbine and finding that all twenty satisfied the criteria for\nauthorization. Second, BIA considered “the risk each\nlocation presents to eagles” in the Supplemental Protection\nPlan; in particular, the Supplemental Protection Plan\ndiscussed whether to cease daytime operation for certain\nturbines close to specific nests.\n\n Third, BIA satisfied the requirement to establish “final\ncriteria determining the risk each location presents to eagles”\nand evaluate “acceptable risk levels to golden eagles based\non these final criteria.” The Supplemental Protection Plan\noutlined how Phase II was expected to meet FWS’s “no-net\nloss standard” for local breeding eagles. BIA determined\nthat all ridgeline turbines could, with certain mitigation\nmeasures, be constructed in a way that met that criteria. And\nit further determined that the “primary period of risk” occurs\nat certain turbines and decided to limit daytime operations of\nthose turbines. Finally, BIA meaningfully consulted with\n\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 11\n\nFWS by hearing comments from FWS throughout the\nprocess and relying on FWS protocols for BIA’s study of the\nrisk to eagles. BIA was not required to explain why it did\nnot adopt a mitigation measure that it did in fact follow.\n\n Similarly, we reject Plaintiffs’ related argument that BIA\nshould have explained why its ROD found no significant\nimpacts to eagles, even though the EIS had concluded that\nthe entire project would impact the eagles. There is no\ndiscrepancy: the EIS considered whether the entire project\nwould have any impact on eagles, whereas the Supplemental\nProtection Plan considered whether Phase II would have\nsignificant impacts, taking into account the Supplemental\nProtection Plan’s mitigation measures and analysis.\n\n B\n\n An EIS must evaluate “all ‘reasonable [and] feasible’\nalternatives in light of the ultimate purposes of the project.”\nProtect Our Communities I, 825 F.3d at 580 (quoting City of\nCarmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142,\n1155 (9th Cir. 1997)). Here, the EIS considered five action\nalternatives in light of the purpose to “facilitate the timely\ndevelopment of [the Tribe’s] wind and solar energy\nresources through tribal renewable energy projects.” Four\nalternatives contemplated construction of all turbines, with\nother changes to the transmission facilities. The fifth\nalternative eliminated about half of the turbines, including\nall of the Phase II turbines. Plaintiffs contend that this\nanalysis was deficient because it did not consider an\nalternative where only some of the Phase II turbines were\nauthorized. BIA responds that Plaintiffs failed to exhaust\nthis argument, and that, in any event, BIA satisfied the\nrequirement to consider reasonable alternatives.\n\f12 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\n\n 1\n\n Plaintiffs “must structure their participation” in the\nagency’s decisionmaking process so as to “alert[] the agency\nto the parties’ position and contentions, in order to allow the\nagency to give the issue meaningful consideration.” Barnes\nv. U.S. Dep’t of Transp., 655 F.3d 1124, 1132 (9th Cir. 2011)\n(quoting Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764\n(2004)). Otherwise, the issue is waived. Id. 1\n\n To determine whether this requirement is met, we are\nguided by its purpose, which is “to permit administrative\nagencies to utilize their expertise, correct any mistakes, and\navoid unnecessary judicial intervention in the process.”\nLands Council v. McNair, 629 F.3d 1070, 1076 (9th Cir.\n2010). The issue need not have been raised “using precise\nlegal formulations, as long as enough clarity is provided that\nthe decision maker understands the issue raised.” Id. The\nagency simply must have “sufficient notice . . . to afford it\nthe opportunity to rectify the violations that the plaintiffs\nalleged.” Native Ecosystems Council v. Dombeck, 304 F.3d\n886, 899 (9th Cir. 2002).\n\n Generally, “[w]e will not invoke the waiver rule . . . if an\nagency has had an opportunity to consider the issue . . . even\nif the issue was considered sua sponte by the agency or was\nraised by someone other than the petitioning party.”\nPortland Gen. Elec. Co., 501 F.3d at 1024; see also\n‘Ilio‘ulaokalani Coal. v. Rumsfeld, 464 F.3d 1083, 1092 (9th\n\n 1\n “While the principle has sometimes been phrased in terms of\nstanding or exhaustion, see Marathon Oil Co. v. United States, 807 F.2d\n759, 767–68 (9th Cir. 1986); Kunaknana v. Clark, 742 F.2d 1145, 1148\n(9th Cir. 1984), we have made clear that it is best characterized as\nwaiver.” Portland Gen. Elec. Co. v. Bonneville Power Admin., 501 F.3d\n1009, 1023 (9th Cir. 2007).\n\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 13\n\nCir. 2006) (issue exhausted where the record was “replete\nwith evidence that the [agency] recognized the specific\nshortfall” raised). In the context of an agency’s analysis of\nalternatives, the Supreme Court has suggested that where no\none has “identified in their comments any rulemaking\nalternatives beyond those evaluated” by the agency or\n“urged [the agency] to consider alternatives,” the issue is\nwaived. Pub. Citizen, 541 U.S. at 765.\n\n Plaintiffs point to several BIA and third-party statements\nto argue that BIA had an opportunity to rectify any\ndeficiency in its alternative analysis. Some comments\nPlaintiffs cite merely highlight the ridgeline turbines’ threat\nto eagles or urge that the entire project should be abandoned.\nBut other comments make clear that BIA was aware that a\ndifferent number of turbines and different siting decisions\nwere possible and potentially desirable. For example, the\nmitigation measure discussed above noted the possibility\nthat “all, none, or part” of Phase II could be authorized. BIA\nitself acknowledged in a comment on the EIS that “specific\nturbines could be eliminated if it is determined that risks\noutweigh benefits.” In an email, an FWS official\n“recommend[ed] that BLM include an alternative in the\nNEPA document that allows for flexibility in regards to\nphasing the project as eagle monitoring information is\ncollected.”\n\n The United States Environmental Protection Agency\n(“EPA”) encouraged BLM and Tule to “relocate, reduce, or\neliminate portions of the project footprint that . . . would\nadversely affect threated, endangered, or sensitive species.”\nIn a letter addressing BLM’s ROD, the Tribe’s Chairman\n\f14 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\n\nrequested that Tule remove one of the turbines that posed a\nparticular threat to eagles in the area. 2\n\n None of these comments precisely alerted BIA that\nNEPA might require it to consider an alternative that\nincluded only some of the ridgeline turbines. But we do not\nrequire “precise legal formulations.” Lands Council,\n629 F.3d at 1076. Public Citizen indicates that to preserve\nan argument that an alternatives analysis is deficient,\ncomments must merely identify “any rulemaking alternative\nbeyond those evaluated” or urge the agency “to consider\nalternatives.” 541 U.S. at 764. Public Citizen did not require\ncomments that explained the precise legal challenge, that is,\nthe agency’s “failure to properly consider possible\nalternatives to the proposed action.” See id. Here,\ncomments did identify alternatives: for example, EPA\nsuggested that BLM “eliminate portions of the project\nfootprint”; the Tribe’s Chairman asked Tule to remove one\nof the turbines from the project; and BIA itself suggested that\nspecific turbines could be eliminated. We conclude that the\nissue is preserved.\n\n 2\n\n “In order to be adequate, an environmental impact\nstatement must consider not every possible alternative, but\nevery reasonable alternative.” Citizens for a Better\n\n 2\n Plaintiffs also highlight comments that arose after the EIS was\nfinalized. Some precedent suggests that issues must be preserved before\nthe EIS is finalized. See Cachil Dehe Band of Wintun Indians of Colusa\nIndian Cmty. v. Zinke, 889 F.3d 584, 604–05 (9th Cir. 2018); N. Idaho\nCmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1156 &\nn.2 (9th Cir. 2008); Exxon Mobil Corp. v. EPA, 217 F.3d 1246, 1249 (9th\nCir. 2000). Because we do not rely on those comments, we do not reach\nthis issue.\n\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 15\n\nHenderson v. Hodel, 768 F.2d 1051, 1057 (9th Cir. 1985).\n“The stated goal of a project necessarily dictates the range of\n‘reasonable’ alternatives . . . .” City of Carmel-by-the-Sea,\n123 F.3d at 1155. An agency need not consider alternatives\nthat are “unlikely to be implemented or those inconsistent\nwith its basic policy objectives.” Seattle Audubon Soc’y v.\nMoseley, 80 F.3d 1401, 1404 (9th Cir. 1996).\n\n We reject Defendants’ argument that Protect Our\nCommunities I controls this case. There, we held that “the\nrange of alternatives considered in the EIS was not\nimpermissibly narrow, as the agency evaluated all\n‘reasonable and feasible’ alternatives in light of the ultimate\npurpose of the project.” 825 F.3d at 580. But that holding\ncannot control this case: that lawsuit was filed before BIA\nissued its ROD, and we did not address whether BIA’s\napproval violated NEPA.\n\n Nevertheless, we hold that the alternatives analysis was\nalso sufficient as to BIA’s approval. If we were viewing\nPhase II as an isolated project, and not as part of a larger\nwind energy development, we might agree with Plaintiffs\nthat the alternatives analysis was insufficient. In\nMuckleshoot Indian Tribe v. United States Forest Service,\n177 F.3d 800, 813 (9th Cir. 1999) (per curiam), we held that\nan alternatives analysis was deficient because it “considered\nonly a no action alternative along with two virtually identical\nalternatives.” Here, as to the Phase II turbines alone, the EIS\neffectively considered one no action alternative (alternative\nfive) and four identical alternatives. No mid-range\nalternative, such as an alternative contemplating only ten of\nthe turbines, was considered. If Phase II constituted the\nentire project, then, Muckleshoot would require us to\nconclude that the alternatives analysis was deficient.\n\f16 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\n\n We do not think it appropriate, however, to view Phase\nII as an isolated project. It is not: instead, the twenty Phase\nII turbines are part of a wind turbine development that\noriginally included over one hundred turbines, to be built by\nthe same developer in the same general area but split along\na jurisdictional line. Although the project was split along a\njurisdictional line, Phase I and Phase II make up one and the\nsame project.\n\n Indeed, we require agencies to issue a single EIS for\n“connected, cumulative, and similar actions” like this\nproject. Dombeck, 304 F.3d at 894 (quoting Wetlands Action\nNetwork v. U.S. Army Corps of Eng’rs, 222 F.3d 1105, 1118\n(9th Cir. 2000)). This requirement “prevent[s] an agency\nfrom ‘dividing a project into multiple “actions,” each of\nwhich individually has an insignificant environmental\nimpact, but which collectively have a substantial impact.’”\nId. We cannot at the same time require agencies to combine\nactions in order to produce an EIS but turn around and divide\nthe actions when we evaluate the sufficiency of the\nalternatives analysis.\n\n Viewing the project as a whole, then, the alternatives\nanalysis was sufficient. Although no mid-range alternative\nwas considered as to the twenty Phase II turbines, the EIS’s\nfifth alternative did consider a mid-range alternative for the\nproject as a whole: construction of 63 out of 128 turbines.\nIndeed, BLM ultimately approved a configuration with\nfewer turbines than had been initially proposed.\n\n Of course, an analysis of a larger project may not always\nbe sufficient to satisfy NEPA for a smaller portion of it. In\nWestern Watersheds Project v. Abbey, 719 F.3d 1035, 1050\n(9th Cir. 2013), we held that an alternatives analysis was\nsufficient as to the programmatic EIS, but insufficient as to\n\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 17\n\nthe site-specific environmental assessment. 3 “Site-specific\nimpacts,” we reasoned, must be evaluated once the “critical\ndecision has been made to act on site development.” Id.\nat 1049 (quoting Friends of Yosemite Valley v. Norton,\n348 F.3d 789, 800 (9th Cir. 2003), opinion clarified, 366\nF.3d 731 (9th Cir. 2004)). Because neither document fully\nconsidered a mid-range alternative, the agency was deprived\nof “information on the environmental impacts of the\nunconsidered alternatives.” Id. at 1050.\n\n Similarly, in Muckleshoot, we held that the agency’s\nprior consideration of an issue could not save a deficient EIS\nbecause the earlier discussion did not “account for the\nspecific impacts” of the project at issue. 177 F.3d at 810;\nsee also Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land\nMgmt., 387 F.3d 989, 998 (9th Cir. 2004). We likewise held\nthat where an agency failed to consider alternatives to a\nproject in a programmatic EIS, it “had an obligation to\nconsider such alternatives in the [site-specific] EIS.”\n‘Ilio‘ulaokalani Coal., 464 F.3d at 1092.\n\n This line of precedent makes sense: a site-specific\nproject demands site-specific analysis. Agencies cannot rely\non a general discussion in a programmatic EIS or other\ndocument to satisfy its NEPA obligations for a site-specific\naction. But here, the EIS did address the site-specific action.\nThe details of the project were known, and the EIS\nspecifically addressed its environmental impacts and\nconsidered a mid-range alternative. Unlike the Forest\nService in Muckleshoot and the BLM in Klamath-Siskiyou,\nthe BIA is not “attempt[ing] to save” a deficient analysis by\n\n 3\n A programmatic EIS “is used to assess the environmental impacts\nof a proposed action that is broad in reach, such as a program, plan, or\npolicy . . . .” 45 C.F.R. § 900.207.\n\f18 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\n\nreference to a more general document. Klamath-Siskiyou,\n387 F.3d at 998.\n\n Plaintiffs point out that the EIS appeared to contemplate\nfurther analysis of the environmental impacts of the Phase II\nturbines in particular. But an agency’s desire for even more\ninformation about the environmental impacts of a project\ndoes not mean that the alternatives were not adequately\nanalyzed. Here, they were.\n\n Finally, we note that we do not confront circumstances\nwhere Defendants were entirely unaware of the possibility\nof alternatives to the twenty-turbine configuration. Our\nprecedent suggests that a non-NEPA document cannot cure\nthe deficiencies of an EIS. See Muckleshoot, 177 F.3d at\n811. But Plaintiffs’ suggestion that BIA failed to consider\nany alternatives “that entailed building some but not all of\nthe proposed ridgeline turbines,” either in the EIS or in “any\nsubsequent document” is inaccurate. The EIS specifically\ncontemplated that “all, none or part of the second portion of\nthe project would be authorized.” Subsequent to the\npromulgation of the EIS, the Supplemental Protection Plan\nconsidered seven plans in which the turbines most\nthreatening to the eagle population would be curtailed during\ntimes of high eagle activity. These plans were similar to\nconsideration of a less-than-full build. In addition, in\nresponse to a comment to the Supplemental Protection Plan\nraised by FWS asking BIA to consider a build of only the six\nsouthernmost turbines, BIA explained why this mid-range\nalternative would not have been practical, noting that\n“development of only 6 turbines would not be sufficient to\njustify the investment in infrastructure to access the\n6 turbines which would result in no revenue source for the\n[Tribe].” Although we do not suggest that post-EIS analysis\ncan serve as a substitute for EIS reasonable alternative\n\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 19\n\nanalysis, these documents make it plain that BIA did not\nsimply ignore the issue.\n\n C\n\n Next, Plaintiffs argue that BIA should have prepared a\nsupplemental EIS (“SEIS”) to analyze information that arose\nafter the EIS was published.\n\n In general, NEPA requires agencies to prepare an SEIS\nwhen “[t]here are significant new circumstances or\ninformation relevant to environmental concerns and bearing\non the proposed action or its impacts.” 40 C.F.R.\n§ 1502.9(c)(ii). We have held that NEPA does not require\nagencies to prepare an SEIS “every time new information\ncomes to light” but instead requires agencies to “maintain a\n‘hard look’ at the impact of agency action when the ‘new\ninformation is sufficient to show that the remaining action\nwill affect the quality of the human environment in a\nsignificant manner or to a significant extent not already\nconsidered.’” League of Wilderness Defs./Blue Mountains\nBiodiversity Project v. Connaughton, 752 F.3d 755, 760 (9th\nCir. 2014) (quoting Marsh v. Or. Nat. Res. Council, 490 U.S.\n360, 373–74 (1989)).\n\n Plaintiffs assert five grounds in support of their\nargument, but we are not persuaded that additional\nenvironmental review was required. First, Plaintiffs contend\nthat information in the Supplemental Protection Plan, along\nwith third-party comments on that plan, met the “new and\nsignificant” threshold requiring an SEIS. Whether new\ninformation is sufficiently significant to necessitate an SEIS\n“turns on the value of the new information to the still\npending decisionmaking process.” Marsh, 490 U.S. at 374.\n\f20 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\n\n Plaintiffs specify several new pieces of information that\nthey say triggered BIA’s duty to prepare an SEIS. New\nsurveys described in the Supplemental Protection Plan\nrevealed at least eight occupied golden eagle territories\nwithin ten miles of Phase II, two at which young had been\nsuccessfully produced, and two at which eaglets failed to\nfledge. The Plan also indicated that the nests nearest Phase\nII continued to be active, and that the flight path of its\nfledglings overlapped with all of the turbine sites. It further\nrevealed that no eagle territory produced young in every\nyear. In addition, new flight surveys showed that 73 of 123\ndocumented eagle flight paths traversed Phase II. Finally,\ncomments from FWS raised concerns about BIA’s lack of\nexpertise on potential impacts to eagles, as well as the\nimportance of the nearby nest to eagle populations in the\nareas and to FWS’s plans.\n\n Although some details are more specific than\ninformation discussed in the EIS, the facts identified by\nPlaintiffs are not both new and significant. The EIS\nrecognizes the presence of eagle territories in the area, the\nmovement of those eagles from different territories in\ndifferent years with varying levels of reproductive success,\nand the existence of the territory nearest Phase II. The EIS\nalso discloses that eagles traverse the Phase II ridgeline.\nThroughout, the EIS acknowledges that the project poses a\nthreat to eagles. Although aspects of FWS’s opposition\ncould be characterized as “new,” it does not suggest the\nproject will impact the environment “to a significant extent\nnot already considered.” Marsh, 490 U.S. at 374. We agree\nwith the district court that the new information is not\nsignificant because “it merely confirmed concerns that the\n2011 EIS already articulated and considered.” Protect Our\nCommunities Found. v. Black, 240 F. Supp. 3d 1055, 1067\n(S.D. Cal. 2017).\n\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 21\n\n Second, Plaintiffs argue that BIA cannot rely on the EIS\n(without supplemental review) because the EIS “rejected”\nthe Phase II turbines.\n\n In Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d\n549, 559 (9th Cir. 2006), we held that an agency could not\nrely on an EIS to take an action where the EIS\n“unequivocal[ly] reject[ed]” that action. We reasoned that\nan EIS cannot supply the requisite environmental analysis to\nsupport a decision directly contrary to its conclusions. Id.\nIn that case, we required the agency to conduct supplemental\nenvironmental review. Id.\n\n But here, the EIS did not “reject” the Phase II turbines.\nInstead, it determined that the ridgeline turbines posed\nparticular risks to the eagles and that further study was\nrequired to understand and potentially mitigate those risks.\nThe EIS fully contemplated and considered potential\nenvironmental impacts of the Phase II turbines, and the BIA\ntook steps to mitigate risks.\n\n Third, Plaintiffs argue that the new information required\nan SEIS because it met the criteria for “significance” under\nNEPA regulations. See 40 C.F.R. § 1508.27(b).\nSpecifically, Plaintiffs contend that new information showed\nthat Phase II is (1) close to cultural resources and\necologically critical areas; (2) highly controversial;\n(3) related to other actions with individually insignificant\nbut cumulatively significant impacts, i.e., other energy\nprojects in the area that threaten eagles; and (4) in violation\nof federal law. But the EIS had already addressed (1) the\nimpact to eagles, and the cultural importance of the eagles;\n(2) FWS’s comments critical of BIA’s conclusions and\nanalysis; (3) additional impacts to eagles from other\ndevelopments; and (4) FWS’s concern that Phase II will not\nqualify for a take permit under the BGEPA. In short, any\n\f22 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\n\nadditional information did not raise new issues that were\n“not already considered” in the EIS. Marsh, 490 U.S. at 374.\n\n Fourth, Plaintiffs argue that BIA’s failure to prepare\nadditional environmental analysis violated the APA’s “hard\nlook” requirement because it did not adequately respond to\nthe comments of FWS and CDFW. In Friends of the\nClearwater v. Dombeck, we said that “[a]n agency that has\nprepared an EIS cannot simply rest on the original\ndocument”; instead, it “must be alert to new information that\nmay alter the results of its original environmental analysis,\nand continue to take a ‘hard look at the environmental effects\nof [its] planned action.’” 222 F.3d 552, 557 (9th Cir. 2000)\n(quoting Marsh, 490 U.S. at 371). 4 We conclude that BIA\ndid, in fact, continue to maintain a hard look at the\nenvironmental impacts, as is shown by the extensive\ndiscussion on the impacts to golden eagles in the ROD and\nSupplemental Protection Plan. We hold that BIA satisfied\nthe “hard look” requirement.\n\n Fifth and finally, Plaintiffs contend that Defendants were\nrequired to, but did not, assess the significance of the new\ninformation. Agencies must evaluate new information’s\nsignificance and make a reasoned determination of whether\n 4\n Plaintiffs cite League of Wilderness Defenders, 309 F.3d at 1192,\nfor the proposition that “the apparently unanswered concerns of a sister\nagency simply do not measure up to the requirements in this Circuit for\na ‘hard look.’” But Plaintiffs take that quote out of context; what the\ncourt says is that “the lack of any analysis” whatsoever of an\nenvironmental impact, “coupled with contradictory statements in the\nProject Guidelines, EIS, Record of Decisions, and the apparently\nunanswered concerns of a sister agency” do not measure up to our hard\nlook requirements. Id. (emphases added). Here, even if BIA left some\nof FWS’s concerns unanswered, it did so in a context where, in contrast\nto Forsgren, its EIS, ROD, and Supplemental Protection Plan had\nthoroughly considered the key issues that the other agency raised.\n\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 23\n\nit is of such significance as to require a supplemental EIS.\nSee id. at 558. In Dombeck, we held that an agency erred\nwhere there was “no evidence in the record” that the agency\neven “considered whether [the interim designation of seven\nnew sensitive species was] sufficiently significant to require\npreparation of [a supplemental EIS].” Id. But in Great Old\nBroads for Wilderness v. Kimbell, 709 F.3d 836, 855 (9th\nCir. 2013), we held that, at least where a change in project\ndesign is at issue, an ROD that states that the EIS “fully\nanalyzed” the relevant questions satisfied the requirement to\nassess the need for supplemental analysis.\n\n Here, the ROD states that the EIS “included an analysis\nof all environmental issues associated with construction and\noperation” of Phase II turbines. As discussed above, no new\nenvironmental issues, such as a new sensitive species\ndesignation, arose in the interim. Moreover, BIA addressed\nalmost all of the purportedly new information in the ROD,\nthe Supplemental Protection Plan, and its response to\ncomments, even if it never stated that the information was\nnot “significant” and therefore did not require more analysis.\n\n D\n\n Plaintiffs’ final two challenges to BIA’s decision\nconcern the agency’s decision not to require Tule to obtain a\nBGEPA permit from FWS. FWS recommended that BIA\ncondition its approval on Tule obtaining a BGEPA permit\nfrom FWS. FWS pointed out that requiring a permit before\napproval would allow Tule to consider different turbine\nsiting designs in response to BGEPA permit requirements\nbefore construction began on the turbines—before it was too\nlate to make necessary modifications to comply. FWS also\nsuggested that the design BIA approved would “not likely\nmeet the conservation standard” for golden eagles and would\nnot likely receive a BGEPA permit.\n\f24 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\n\n Despite FWS’s concerns, BIA only required Tule to\napply for a permit before it began operation of the turbines.\nBIA did not require Tule to obtain a permit before Tule\nbegan construction, as the FWS had urged BIA to do.\nNevertheless, the ROD explicitly noted that Tule “must\ncomply with all applicable Federal laws, including any\nrequirements for an eagle take permit under the BGEPA.”\nAnd BIA warned that “any take of eagles caused by the\nProject, prior to the issuance of an eagle take permit,\nconstitutes a violation of the [Eagle Act] that the FWS may\nrefer to the Department of Justice for enforcement.”\n\n We firmly reject Plaintiffs’ false contention, pressed at\noral argument, that BIA intimated that Tule could comply\nwith BGEPA merely by applying for a permit. To the\ncontrary, the ROD said that Tule would comply with BIA’s\nrequirements for approval by applying for a permit. No\nperson could seriously suggest that Tule would comply with\nBGEPA’s requirement merely by applying for a permit. To\nthe contrary, the ROD confirms that Tule must comply with\n“any requirements for an eagle take permit under the\nBGEPA” and spells out the consequences of noncompliance.\nIf Tule were to violate the BGEPA, it would do so at the risk\nof civil and criminal penalties.\n\n 1\n\n We next address Plaintiffs’ argument that BIA’s decision\nwas not in accordance with the law. Under the APA, federal\nagency action is invalid if it is “not in accordance with the\nlaw.” 5 U.S.C. § 706(2)(A). Applying this rule, we have\ninvalidated agency action that sanctioned unlawful conduct\nby third parties. See, e.g., Anderson v. Evans, 371 F.3d 475,\n480 (9th Cir. 2004) (holding agency erred by permitting\nunlawful hunting of whale in reliance on an incorrect legal\ninterpretation); Wilderness Soc’y v. U.S. Fish & Wildlife\n\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 25\n\nServ., 353 F.3d 1051, 1067 (9th Cir. 2003) (en banc)\n(holding agency erred by permitting “commercial\nenterprise” in area where commercial activities were\nprohibited by statute).\n\n But we explained in Protect Our Communities I that “the\nAPA does not target regulatory action by [an agency] that\npermits a third-party grantee like Tule to engage in otherwise\nlawful behavior, and only incidentally leads to subsequent\nunlawful action by that third party.” 825 F.3d at 586. We\nnoted that “BLM’s right-of-way did not sanction or\nauthorize the taking of migratory birds without a permit; it\nauthorized the development of a wind-energy facility.” Id.\nat 587. We reasoned that “[w]ithout further indication of its\ninvolvement in the putative violation, we cannot hold the\nBLM complicit in future unlawful activity, separately\ncommitted by a grantee, through a mere failure to intervene\nat the permitting stage.” Id.\n\n That prior holding controls this case. Plaintiffs attempt\nto distinguish Protect Our Communities I on the basis that\nthe Phase II turbines pose a far greater threat to golden eagles\nthan the Phase I turbines. But our reasoning in Protect Our\nCommunities I did not depend on the degree of risk to eagles.\nInstead, we emphasized that BLM had not authorized the\ntake of eagles without securing permission from FWS. Id.\nat 587 (noting that BLM “has not sanctioned or encouraged\nan unlawful course of action by Tule,” and instead it “has\ndone the opposite” by requiring compliance with “all\napplicable laws and regulations”). Protect Our\nCommunities I forecloses Plaintiffs’ challenge to BIA’s\ndecision: because BIA, like BLM, required Tule to apply for\na permit, and required Tule to comply with all applicable\nlaws, BIA’s authorization was not in any way in violation of\nthe law.\n\f26 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\n\n 2\n\n Plaintiffs further contend that BIA acted arbitrarily and\ncapriciously by not conditioning its approval of Phase II on\nTule obtaining a permit, especially where FWS had urged\nBIA to do so.\n\n Under the arbitrary and capricious standard, “we are not\nto substitute [our] judgment for that of the agency.” State\nFarm, 463 U.S. at 43. A decision is arbitrary and capricious\nonly if it “entirely failed to consider an important aspect of\nthe problem, offered an explanation for its decision that runs\ncounter to the evidence before the agency, or is so\nimplausible that it could not be ascribed to a difference in\nview or the product of agency expertise.” Id.\n\n We agree that for practical reasons it will be best for Tule\nto seek a permit early in the construction process before it is\ntoo late to make modifications that the BGEPA may require.\nBut as we emphasized in Protect Our Communities I, Tule’s\ncompliance with the BGEPA is between Tule and FWS.\n825 F.3d at 588 (“BLM . . . is neither statutorily tasked with\npolicing third-party compliance with the Eagle Act nor\nresponsible for violations that might be independently\ncommitted by grantees, such as Tule.”); see also 74 Fed.\nReg. 44,843 (Sep. 11, 2009) (FWS regulation explaining that\n“[p]ersons and organizations that obtain licenses, permits,\ngrants, or other such services from government agencies are\nresponsible for their own compliance with the Eagle Act and\nshould individually seek permits”).\n\n Because compliance is Tule’s responsibility, BIA’s\ndecision not to require the grant of the permit was not\nirrational. Indeed, BIA had a sensible reason not to\ncondition its approval on Defendants’ obtaining a permit. As\nBIA explained in its ROD, FWS’s guidelines for BGEPA\n\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 27\n\npermits were “not yet final” at the time BIA intended to\nfinalize its approval. Rather than wait for FWS to finalize\nits guidelines and issue (or deny) a permit, BIA decided to\nget its own approval out of the way—without interfering\nwith FWS’s administration of the BGEPA, and ensuring that\nTule was well aware of its obligations under BGEPA and\nother federal laws. BIA’s decision not to condition its\napproval on prior acquisition of a permit from another\nagency was not arbitrary or capricious.\n\n IV\n\n What is troubling about this case is that it appears that, if\nand when the project proceeds, some eagles may die or have\ntheir nests impaired diminishing reproduction. But the\nprotections given by our environmental laws are not\nabsolute. NEPA doesn’t control any substantive result but\nrather requires procedural protections to ensure that a “hard\nlook” was given to reasonable alternatives. The Endangered\nSpecies Act doesn’t absolutely prohibit all deaths of\nendangered species caused by development but rather\nprohibits the incidental taking of endangered creatures’ lives\nif done without a permit that specifically allows the\nincidental take. The Bald and Golden Eagle Protection Act\ndoesn’t outlaw every killing of the eagle, just take without a\npermit.\n\n Of course, Tule must comply with BGEPA at all times\nduring the construction and operation of the project. While\nwe recognize the legitimate concerns about the well-being of\nprotected eagles raised by Plaintiffs and FWS, we are\npersuaded that those concerns can be addressed through the\nBGEPA permitting process.\n\n At the same time, there are benefits to the Tribe and to\nthe United States that will come from the project, and BIA\n\f28 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\n\nhas a special concern to advance the interests of the Indian\nnations under its jurisdiction. While that would not justify\ndisregarding environmental laws when clearly applicable,\nsee, e.g., Anderson, 371 F.3d at 494–502 (holding that Indian\nnation should be enjoined from hunting whales absent a\npermit under the MMPA), the interests of the Ewiiaapaayp\nBand of Kumeyaay Indians weigh in favor of the Tribe in\nthis close case involving potentially competing values.\n\n We therefore conclude that in the total circumstances of\nthis case the EIS analysis was sufficient to satisfy NEPA. So\nfar as the demands of NEPA and the APA are concerned,\nthis project can proceed.\n\n AFFIRMED.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Protect Our Communities v. Darryl Lacounte\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-23\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nPROTECT OUR COMMUNITIES No. 17-55647\\nFOUNDATION; DAVID HOGAN; NICA\\nKNITE, D.C. No.\\n Plaintiffs-Appellants, 3:14-cv-02261-\\n JLS-JMA\\n v.\\n\\nDARRYL LACOUNTE, Acting OPINION\\nDirector, Bureau of Indian Affairs;\\nDAVID L. BERNHARDT, Secretary,\\nDepartment of the Interior; TARA\\nKATUK MACLEAN SWEENEY,\\nAssistant Secretary for Indian\\nAffairs; AMY DUTSCHKE, Regional\\nDirector, Bureau of Indian Affairs\\nPacific Region; JOHN RYDZIK, Chief,\\nBureau of Indian Affairs Pacific\\nRegion Division of Environmental\\nCultural Resources Management &\\nSafety,\\n Defendants-Appellees,\\n\\nTULE WIND, LLC; EWIIAAPAAYP\\nBAND OF KUMEYAAY INDIANS,\\n Intervenor-Defendants-\\n Appellees.\\n\\f2 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\n Appeal from the United States District Court\\n for the Southern District of California\\n Janis L. Sammartino, District Judge, Presiding\\n\\n Argued and Submitted November 14, 2018\\n Pasadena, California\\n\\n Filed September 23, 2019\\n\\n Before: Ronald M. Gould and Mary H. Murguia, Circuit\\n Judges, and Carol Bagley Amon, * District Judge.\\n\\n Opinion by Judge Gould\\n\\n\\n SUMMARY **\\n\\n\\n Environmental Policy\\n\\n The panel affirmed the district court’s summary\\njudgment in favor of Bureau of Indian Affairs (“BIA”)\\nofficials, Tule Wind, LLC and Ewiiaapaayp Band of\\nKumeyaay Indians in an action challenging the BIA’s\\napproval of an industrial-scale wind facility in Southern\\nCalifornia.\\n\\n Tule plans to construct eighty-five wind turbines, and the\\nproject was split into two phases. Phase I concerned sixty-\\n\\n *\\n The Honorable Carol Bagley Amon, United States District Judge\\nfor the Eastern District of New York, sitting by designation.\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 3\\n\\nfive turbines constructed on federal land, requiring approval\\nfrom the Bureau of Land Management (“BLM”). Phase II\\nconcerned twenty turbines on the Tribe’s reservation,\\nrequiring approval from the BIA, which serves as a trustee\\nfor the Tribe. BLM prepared an environmental impact\\nstatement (“EIS”) under the National Environmental Policy\\nAct (“NEPA”) that covered both phases. BIA approved\\nPhase II in a Record of Decision that relied on BLM’s EIS\\nand Tule’s Supplemental Protection Plan.\\n\\n The panel considered plaintiffs’ contention that BLM’s\\nreliance on the EIS was improper because BIA did not\\nexplain its decision not to implement one of the EIS’s listed\\nmitigation measures. The panel agreed with the defendants\\nthat the BIA did follow the command of this mitigation\\nmeasure, and for that reason, did not need to explain its\\ndecision not to implement it.\\n\\n The panel next considered plaintiffs’ contention that the\\nEIS’s consideration of five action alternatives was deficient\\nbecause it did not consider an alternative where only some\\nof the Phase II turbines were authorized. The panel held that\\nthe issue was properly preserved, and not waived. The panel\\nfurther held that viewing the project as a whole, the\\nalternatives analysis was sufficient.\\n\\n Plaintiffs argued that BIA should have prepared a\\nsupplemental EIS to analyze information that arose after the\\nEIS was published. The panel considered five grounds\\nasserted by plaintiffs in support of their argument, and\\nconcluded that additional environmental review was not\\nrequired.\\n\\n The panel rejected plaintiffs’ challenges to BIA’s\\ndecision not to require Tule to obtain an eagle take permit\\n\\f4 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\nunder the Bald and Golden Eagle Protection Act (“BGEPA”)\\nfrom the U.S. Fish and Wildlife Service. BIA did not require\\nTule to obtain a permit before Tule began construction as the\\nService had urged, and only required Tule to apply for a\\npermit before it began operation of the turbines. The panel\\nrejected plaintiffs’ false contention that BIA intimated that\\nTule could comply with BGEPA merely by applying for a\\npermit. The panel held that BIA’s authorization was not in\\nany way a violation of the law because the BIA, like the\\nBLM, required Tule to apply for a permit and required Tule\\nto comply with all applicable laws. In addition, the panel\\nheld that the BIA did not act arbitrarily and capriciously by\\nnot conditioning its approval of Phase II on Tule obtaining a\\npermit.\\n\\n The panel concluded that in the total circumstances of\\nthis case, the EIS analysis was sufficient to satisfy NEPA,\\nand so far as the demands of NEPA and the Administrative\\nProcedure Act were concerned, this project could proceed.\\n\\n\\n COUNSEL\\n\\nWilliam S. Eubanks II (argued), Meyer Glitzenstein &\\nEubanks LLP, Fort Collins, Colorado; William N. Lawton,\\nMeyer Glitzenstein & Eubanks LLP ,Washington, D.C.; for\\nPlaintiffs-Appellants.\\n\\nAllen M. Brabender (argued), Brian Collins, and John H.\\nMartin, Attorneys; Eric Grant, Deputy Assistant Attorney\\nGeneral; Jeffrey H. Wood, Acting Assistant Attorney\\nGeneral; Environment & Natural Resources Division,\\nUnited States Department of Justice, Washington, D.C.; for\\nDefendants-Appellees.\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 5\\n\\nJeffrey Durocher, Portland, Oregon; for Intervenor-\\nDefendant-Appellee Tule Wind, LLC.\\n\\nBradley G. Bledsoe Downes, Bledsoe Downes PC,\\nChandler, Arizona, for Intervenor-Defendant-Appellee\\nEwiiaapaayp Band of Kumeyaay Indians.\\n\\n\\n OPINION\\n\\nGOULD, Circuit Judge:\\n\\n Plaintiffs Protect Our Communities Foundation, David\\nHogan, and Nica Knite (“Plaintiffs”) challenge the decision\\nof the Bureau of Indian Affairs (“BIA”) to approve an\\nindustrial-scale wind facility in Southern California. The\\ndistrict court granted summary judgment to Defendant BIA\\nofficials, Defendant-Intervenor Tule Wind, LLC (“Tule”),\\nand Defendant-Intervenor Ewiiaapaayp Band of Kumeyaay\\nIndians (“the Tribe”) (collectively, “Defendants”). We\\naffirm.\\n\\n I\\n\\n Tule plans to construct eighty-five wind turbines about\\nsixty miles east of San Diego, California. During the\\nplanning and approval process, the project was split into two\\nphases. Phase I concerned sixty-five turbines constructed on\\nfederal land in a valley and required approval from the\\nBureau of Land Management (“BLM”), which is responsible\\nfor granting rights-of-way for use of federal lands. Phase II\\nconcerned twenty turbines on the Tribe’s reservation on\\nridgelines above the valley. Phase II required approval from\\nBIA, which serves as a trustee for federally recognized\\nIndian tribes.\\n\\f6 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\n Before BLM and BIA approved the respective phases,\\nthe agencies were required to analyze environmental impacts\\nunder the National Environmental Protection Act (“NEPA”),\\n42 U.S.C. §§ 4321 et seq. BLM prepared an environmental\\nimpact statement (“EIS”) that covered both phases.\\n\\n Among other environmental impacts, the EIS expressly\\nidentified an “unavoidable adverse impact” to golden eagles\\nfrom collisions with the turbines and loss of breeding\\nterritory, impacts that were especially acute for the Phase II\\nturbines. The EIS considered five project alternatives for the\\nTule project, including one that would eliminate 63 turbines,\\nincluding all of the Phase II turbines, from the 128 that were\\noriginally proposed.\\n\\n For Phase I, Tule drafted a Project-Specific Avian and\\nBat Protection Plan (“Protection Plan”) that described\\npossible means of mitigating bird and bat impacts in detail.\\nRelying on that plan and the EIS, BLM approved Phase I.\\nImportantly, that approval survived review in this court. See\\nProtect Our Communities Found. v. Jewell, 825 F.3d 571,\\n577 (9th Cir. 2016) [hereinafter “Protect Our Communities\\nI”].\\n\\n For Phase II, Tule drafted a Supplemental Project-\\nSpecific Avian and Bat Protection Plan (“Supplemental\\nProtection Plan”) that included updated eagle surveys and\\ndescribed measures to document and avoid bird impacts.\\nThe Supplemental Protection Plan concluded that, with\\nmitigation measures, Phase II could “meet the current no-net\\nloss standard for local breeding eagle populations.” BIA\\nmade the Supplemental Protection Plan available for public\\ncomment. The United States Fish and Wildlife Service\\n(“FWS”), among other entities, criticized the Supplemental\\nProtection Plan’s methodologies and conclusion.\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 7\\n\\n BIA approved Phase II in a Record of Decision (“ROD”)\\nthat relied on BLM’s EIS and Tule’s Supplemental\\nProtection Plan. The ROD adopted several mitigation\\nmeasures designed to avoid impacts to golden eagles. These\\nmitigation measures included a requirement that before\\noperating, Tule had to apply for an eagle take permit under\\nthe Bald and Golden Eagle Protection Act (“BGEPA”),\\n16 U.S.C. § 668.\\n\\n Plaintiffs challenged BIA’s approval in the district court,\\nasserting three alleged errors. The district court granted\\nDefendants’ motion for judgment on the pleadings on two of\\nthe claimed errors and granted Defendants’ motions for\\nsummary judgment on the third. Plaintiffs timely appealed.\\n\\n II\\n\\n A district court’s grant of summary judgment is reviewed\\nde novo. United States v. City of Tacoma, 332 F.3d 574, 578\\n(9th Cir. 2003). Dismissal on the pleadings pursuant to Rule\\n12(c) is also reviewed de novo. See Daewoo Elecs. Am. Inc.\\nv. Opta Corp., 875 F.3d 1241, 1246 (9th Cir. 2017).\\n\\n Under the Administrative Procedure Act (“APA”), we\\nreview agency action to determine whether it is “arbitrary,\\ncapricious, an abuse of discretion, or otherwise not in\\naccordance with law.” 5 U.S.C. § 706(2)(A). An agency\\nacts in an “arbitrary and capricious” manner when it “relie[s]\\non factors which Congress has not intended it to consider,\\nentirely fail[s] to consider an important aspect of the\\nproblem, offer[s] an explanation for its decision that runs\\ncounter to the evidence before the agency, or is so\\nimplausible that it c[an]not be ascribed to a difference in\\nview or the product of agency expertise.” Motor Vehicle\\nMfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,\\n43 (1983).\\n\\f8 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\n As a general rule, we will “uphold agency decisions so\\nlong as the agencies have ‘considered the relevant factors\\nand articulated a rational connection between the factors\\nfound and the choices made.’” City of Sausalito v. O’Neill,\\n386 F.3d 1186, 1206 (9th Cir. 2004) (quoting Selkirk\\nConservation All. v. Forsgren, 336 F.3d 944, 953–54 (9th\\nCir. 2003)).\\n\\n In addition to APA challenges, Plaintiffs raise challenges\\nunder NEPA. NEPA requires agencies to prepare an EIS for\\n“major Federal actions significantly affecting the quality of\\nthe human environment.” 42 U.S.C. § 4332(2)(C). The EIS\\nmust contain, among other things, a detailed discussion of\\n“the environmental impact of the proposed action,” “adverse\\nenvironmental effects which cannot be avoided,”\\n“alternatives to the proposed action,” and possible\\nmitigation measures. Id.; 40 C.F.R. § 1502.16. If multiple\\nfederal agencies are “involved in the same action” or\\n“involved in a group of actions directly related to each\\nother,” then “[a] lead agency shall supervise” the EIS\\npreparation, or the agencies may act as joint lead agencies.\\n40 C.F.R. § 1501.5.\\n\\n After finalizing the EIS, the agency must select a course\\nof action within the range of alternatives analyzed and issue\\nan ROD. Id. § 1505.1. The ROD explains why the agency\\nchose a particular alternative, whether all practical means for\\navoiding or minimizing environmental harm have been\\nadopted, and, if not, why not. See id. § 1505.2.\\n\\n NEPA requires these procedural steps but does not\\nrequire an agency to reach any particular result. Hells\\nCanyon All. v. U.S. Forest Serv., 227 F.3d 1170, 1177 (9th\\nCir. 2000). Rather, compliance with NEPA involves the\\napplication of a “rule of reason,” which involves “a\\npragmatic judgment whether the EIS’s form, content, and\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 9\\n\\npreparation foster both informed decision-making and\\ninformed public participation.” Churchill Cty. v. Norton,\\n276 F.3d 1060, 1071 (9th Cir. 2001) (quoting California v.\\nBlock, 690 F.2d 753, 761 (9th Cir. 1982)).\\n\\n Nevertheless, a reviewing court will ensure that the\\nagency took a “hard look” at the EIS to determine whether it\\n“contains a reasonably thorough discussion of the significant\\naspects of the probable environmental consequences.” Id. at\\n1071–72 (quotation marks omitted). NEPA favors\\n“coherent and comprehensive up-front environmental\\nanalysis to ensure . . . that the agency will not act on\\nincomplete information, only to regret its decision after it is\\ntoo late to correct.” Id. at 1072–73 (quotation marks\\nomitted).\\n\\n III\\n\\n A\\n\\n BIA relied on BLM’s EIS, which addressed both Phase\\nI and Phase II, to satisfy its NEPA review requirement. See\\n42 U.S.C. § 4332(2)(C). Plaintiffs contend that that reliance\\nwas improper because BIA did not explain its decision to not\\nimplement one of the EIS’s listed mitigation measures, MM\\nBIO-10f. That measure provides:\\n\\n Authorize construction of portions of the\\n project based on the results of behavioral and\\n population studies of local golden eagles:\\n Construction of [Phase II] would occur at\\n those turbine locations that show reduced risk\\n to the eagle population following analysis of\\n detailed behavior studies of known eagles in\\n the vicinity of the Tule Wind project.\\n Pending the outcome of eagle behavior\\n\\f10 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\n studies, all, none, or part of the second\\n portion of the project would be\\n authorized. . . . The final criteria determining\\n the risk each location presents to eagles will\\n be determined [by BIA] in consultation with\\n the required resource agencies, tribes, and\\n other relevant permitting agencies . . . .\\n Turbine locations exceeding the acceptable\\n risk levels to golden eagles based on these\\n final criteria will not be authorized for\\n construction.\\n\\n Defendants respond that in fact BIA did follow the\\ncommand of this mitigation measure and, for that reason, did\\nnot need to explain its decision not to implement it. We\\nagree. First, BIA considered whether to “authorize\\nconstruction of portions of the project,” by considering each\\nturbine and finding that all twenty satisfied the criteria for\\nauthorization. Second, BIA considered “the risk each\\nlocation presents to eagles” in the Supplemental Protection\\nPlan; in particular, the Supplemental Protection Plan\\ndiscussed whether to cease daytime operation for certain\\nturbines close to specific nests.\\n\\n Third, BIA satisfied the requirement to establish “final\\ncriteria determining the risk each location presents to eagles”\\nand evaluate “acceptable risk levels to golden eagles based\\non these final criteria.” The Supplemental Protection Plan\\noutlined how Phase II was expected to meet FWS’s “no-net\\nloss standard” for local breeding eagles. BIA determined\\nthat all ridgeline turbines could, with certain mitigation\\nmeasures, be constructed in a way that met that criteria. And\\nit further determined that the “primary period of risk” occurs\\nat certain turbines and decided to limit daytime operations of\\nthose turbines. Finally, BIA meaningfully consulted with\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 11\\n\\nFWS by hearing comments from FWS throughout the\\nprocess and relying on FWS protocols for BIA’s study of the\\nrisk to eagles. BIA was not required to explain why it did\\nnot adopt a mitigation measure that it did in fact follow.\\n\\n Similarly, we reject Plaintiffs’ related argument that BIA\\nshould have explained why its ROD found no significant\\nimpacts to eagles, even though the EIS had concluded that\\nthe entire project would impact the eagles. There is no\\ndiscrepancy: the EIS considered whether the entire project\\nwould have any impact on eagles, whereas the Supplemental\\nProtection Plan considered whether Phase II would have\\nsignificant impacts, taking into account the Supplemental\\nProtection Plan’s mitigation measures and analysis.\\n\\n B\\n\\n An EIS must evaluate “all ‘reasonable [and] feasible’\\nalternatives in light of the ultimate purposes of the project.”\\nProtect Our Communities I, 825 F.3d at 580 (quoting City of\\nCarmel-by-the-Sea v. U.S. Dep’t of Transp., 123 F.3d 1142,\\n1155 (9th Cir. 1997)). Here, the EIS considered five action\\nalternatives in light of the purpose to “facilitate the timely\\ndevelopment of [the Tribe’s] wind and solar energy\\nresources through tribal renewable energy projects.” Four\\nalternatives contemplated construction of all turbines, with\\nother changes to the transmission facilities. The fifth\\nalternative eliminated about half of the turbines, including\\nall of the Phase II turbines. Plaintiffs contend that this\\nanalysis was deficient because it did not consider an\\nalternative where only some of the Phase II turbines were\\nauthorized. BIA responds that Plaintiffs failed to exhaust\\nthis argument, and that, in any event, BIA satisfied the\\nrequirement to consider reasonable alternatives.\\n\\f12 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\n 1\\n\\n Plaintiffs “must structure their participation” in the\\nagency’s decisionmaking process so as to “alert[] the agency\\nto the parties’ position and contentions, in order to allow the\\nagency to give the issue meaningful consideration.” Barnes\\nv. U.S. Dep’t of Transp., 655 F.3d 1124, 1132 (9th Cir. 2011)\\n(quoting Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 764\\n(2004)). Otherwise, the issue is waived. Id. 1\\n\\n To determine whether this requirement is met, we are\\nguided by its purpose, which is “to permit administrative\\nagencies to utilize their expertise, correct any mistakes, and\\navoid unnecessary judicial intervention in the process.”\\nLands Council v. McNair, 629 F.3d 1070, 1076 (9th Cir.\\n2010). The issue need not have been raised “using precise\\nlegal formulations, as long as enough clarity is provided that\\nthe decision maker understands the issue raised.” Id. The\\nagency simply must have “sufficient notice . . . to afford it\\nthe opportunity to rectify the violations that the plaintiffs\\nalleged.” Native Ecosystems Council v. Dombeck, 304 F.3d\\n886, 899 (9th Cir. 2002).\\n\\n Generally, “[w]e will not invoke the waiver rule . . . if an\\nagency has had an opportunity to consider the issue . . . even\\nif the issue was considered sua sponte by the agency or was\\nraised by someone other than the petitioning party.”\\nPortland Gen. Elec. Co., 501 F.3d at 1024; see also\\n‘Ilio‘ulaokalani Coal. v. Rumsfeld, 464 F.3d 1083, 1092 (9th\\n\\n 1\\n “While the principle has sometimes been phrased in terms of\\nstanding or exhaustion, see Marathon Oil Co. v. United States, 807 F.2d\\n759, 767–68 (9th Cir. 1986); Kunaknana v. Clark, 742 F.2d 1145, 1148\\n(9th Cir. 1984), we have made clear that it is best characterized as\\nwaiver.” Portland Gen. Elec. Co. v. Bonneville Power Admin., 501 F.3d\\n1009, 1023 (9th Cir. 2007).\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 13\\n\\nCir. 2006) (issue exhausted where the record was “replete\\nwith evidence that the [agency] recognized the specific\\nshortfall” raised). In the context of an agency’s analysis of\\nalternatives, the Supreme Court has suggested that where no\\none has “identified in their comments any rulemaking\\nalternatives beyond those evaluated” by the agency or\\n“urged [the agency] to consider alternatives,” the issue is\\nwaived. Pub. Citizen, 541 U.S. at 765.\\n\\n Plaintiffs point to several BIA and third-party statements\\nto argue that BIA had an opportunity to rectify any\\ndeficiency in its alternative analysis. Some comments\\nPlaintiffs cite merely highlight the ridgeline turbines’ threat\\nto eagles or urge that the entire project should be abandoned.\\nBut other comments make clear that BIA was aware that a\\ndifferent number of turbines and different siting decisions\\nwere possible and potentially desirable. For example, the\\nmitigation measure discussed above noted the possibility\\nthat “all, none, or part” of Phase II could be authorized. BIA\\nitself acknowledged in a comment on the EIS that “specific\\nturbines could be eliminated if it is determined that risks\\noutweigh benefits.” In an email, an FWS official\\n“recommend[ed] that BLM include an alternative in the\\nNEPA document that allows for flexibility in regards to\\nphasing the project as eagle monitoring information is\\ncollected.”\\n\\n The United States Environmental Protection Agency\\n(“EPA”) encouraged BLM and Tule to “relocate, reduce, or\\neliminate portions of the project footprint that . . . would\\nadversely affect threated, endangered, or sensitive species.”\\nIn a letter addressing BLM’s ROD, the Tribe’s Chairman\\n\\f14 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\nrequested that Tule remove one of the turbines that posed a\\nparticular threat to eagles in the area. 2\\n\\n None of these comments precisely alerted BIA that\\nNEPA might require it to consider an alternative that\\nincluded only some of the ridgeline turbines. But we do not\\nrequire “precise legal formulations.” Lands Council,\\n629 F.3d at 1076. Public Citizen indicates that to preserve\\nan argument that an alternatives analysis is deficient,\\ncomments must merely identify “any rulemaking alternative\\nbeyond those evaluated” or urge the agency “to consider\\nalternatives.” 541 U.S. at 764. Public Citizen did not require\\ncomments that explained the precise legal challenge, that is,\\nthe agency’s “failure to properly consider possible\\nalternatives to the proposed action.” See id. Here,\\ncomments did identify alternatives: for example, EPA\\nsuggested that BLM “eliminate portions of the project\\nfootprint”; the Tribe’s Chairman asked Tule to remove one\\nof the turbines from the project; and BIA itself suggested that\\nspecific turbines could be eliminated. We conclude that the\\nissue is preserved.\\n\\n 2\\n\\n “In order to be adequate, an environmental impact\\nstatement must consider not every possible alternative, but\\nevery reasonable alternative.” Citizens for a Better\\n\\n 2\\n Plaintiffs also highlight comments that arose after the EIS was\\nfinalized. Some precedent suggests that issues must be preserved before\\nthe EIS is finalized. See Cachil Dehe Band of Wintun Indians of Colusa\\nIndian Cmty. v. Zinke, 889 F.3d 584, 604–05 (9th Cir. 2018); N. Idaho\\nCmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1156 &\\nn.2 (9th Cir. 2008); Exxon Mobil Corp. v. EPA, 217 F.3d 1246, 1249 (9th\\nCir. 2000). Because we do not rely on those comments, we do not reach\\nthis issue.\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 15\\n\\nHenderson v. Hodel, 768 F.2d 1051, 1057 (9th Cir. 1985).\\n“The stated goal of a project necessarily dictates the range of\\n‘reasonable’ alternatives . . . .” City of Carmel-by-the-Sea,\\n123 F.3d at 1155. An agency need not consider alternatives\\nthat are “unlikely to be implemented or those inconsistent\\nwith its basic policy objectives.” Seattle Audubon Soc’y v.\\nMoseley, 80 F.3d 1401, 1404 (9th Cir. 1996).\\n\\n We reject Defendants’ argument that Protect Our\\nCommunities I controls this case. There, we held that “the\\nrange of alternatives considered in the EIS was not\\nimpermissibly narrow, as the agency evaluated all\\n‘reasonable and feasible’ alternatives in light of the ultimate\\npurpose of the project.” 825 F.3d at 580. But that holding\\ncannot control this case: that lawsuit was filed before BIA\\nissued its ROD, and we did not address whether BIA’s\\napproval violated NEPA.\\n\\n Nevertheless, we hold that the alternatives analysis was\\nalso sufficient as to BIA’s approval. If we were viewing\\nPhase II as an isolated project, and not as part of a larger\\nwind energy development, we might agree with Plaintiffs\\nthat the alternatives analysis was insufficient. In\\nMuckleshoot Indian Tribe v. United States Forest Service,\\n177 F.3d 800, 813 (9th Cir. 1999) (per curiam), we held that\\nan alternatives analysis was deficient because it “considered\\nonly a no action alternative along with two virtually identical\\nalternatives.” Here, as to the Phase II turbines alone, the EIS\\neffectively considered one no action alternative (alternative\\nfive) and four identical alternatives. No mid-range\\nalternative, such as an alternative contemplating only ten of\\nthe turbines, was considered. If Phase II constituted the\\nentire project, then, Muckleshoot would require us to\\nconclude that the alternatives analysis was deficient.\\n\\f16 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\n We do not think it appropriate, however, to view Phase\\nII as an isolated project. It is not: instead, the twenty Phase\\nII turbines are part of a wind turbine development that\\noriginally included over one hundred turbines, to be built by\\nthe same developer in the same general area but split along\\na jurisdictional line. Although the project was split along a\\njurisdictional line, Phase I and Phase II make up one and the\\nsame project.\\n\\n Indeed, we require agencies to issue a single EIS for\\n“connected, cumulative, and similar actions” like this\\nproject. Dombeck, 304 F.3d at 894 (quoting Wetlands Action\\nNetwork v. U.S. Army Corps of Eng’rs, 222 F.3d 1105, 1118\\n(9th Cir. 2000)). This requirement “prevent[s] an agency\\nfrom ‘dividing a project into multiple “actions,” each of\\nwhich individually has an insignificant environmental\\nimpact, but which collectively have a substantial impact.’”\\nId. We cannot at the same time require agencies to combine\\nactions in order to produce an EIS but turn around and divide\\nthe actions when we evaluate the sufficiency of the\\nalternatives analysis.\\n\\n Viewing the project as a whole, then, the alternatives\\nanalysis was sufficient. Although no mid-range alternative\\nwas considered as to the twenty Phase II turbines, the EIS’s\\nfifth alternative did consider a mid-range alternative for the\\nproject as a whole: construction of 63 out of 128 turbines.\\nIndeed, BLM ultimately approved a configuration with\\nfewer turbines than had been initially proposed.\\n\\n Of course, an analysis of a larger project may not always\\nbe sufficient to satisfy NEPA for a smaller portion of it. In\\nWestern Watersheds Project v. Abbey, 719 F.3d 1035, 1050\\n(9th Cir. 2013), we held that an alternatives analysis was\\nsufficient as to the programmatic EIS, but insufficient as to\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 17\\n\\nthe site-specific environmental assessment. 3 “Site-specific\\nimpacts,” we reasoned, must be evaluated once the “critical\\ndecision has been made to act on site development.” Id.\\nat 1049 (quoting Friends of Yosemite Valley v. Norton,\\n348 F.3d 789, 800 (9th Cir. 2003), opinion clarified, 366\\nF.3d 731 (9th Cir. 2004)). Because neither document fully\\nconsidered a mid-range alternative, the agency was deprived\\nof “information on the environmental impacts of the\\nunconsidered alternatives.” Id. at 1050.\\n\\n Similarly, in Muckleshoot, we held that the agency’s\\nprior consideration of an issue could not save a deficient EIS\\nbecause the earlier discussion did not “account for the\\nspecific impacts” of the project at issue. 177 F.3d at 810;\\nsee also Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land\\nMgmt., 387 F.3d 989, 998 (9th Cir. 2004). We likewise held\\nthat where an agency failed to consider alternatives to a\\nproject in a programmatic EIS, it “had an obligation to\\nconsider such alternatives in the [site-specific] EIS.”\\n‘Ilio‘ulaokalani Coal., 464 F.3d at 1092.\\n\\n This line of precedent makes sense: a site-specific\\nproject demands site-specific analysis. Agencies cannot rely\\non a general discussion in a programmatic EIS or other\\ndocument to satisfy its NEPA obligations for a site-specific\\naction. But here, the EIS did address the site-specific action.\\nThe details of the project were known, and the EIS\\nspecifically addressed its environmental impacts and\\nconsidered a mid-range alternative. Unlike the Forest\\nService in Muckleshoot and the BLM in Klamath-Siskiyou,\\nthe BIA is not “attempt[ing] to save” a deficient analysis by\\n\\n 3\\n A programmatic EIS “is used to assess the environmental impacts\\nof a proposed action that is broad in reach, such as a program, plan, or\\npolicy . . . .” 45 C.F.R. § 900.207.\\n\\f18 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\nreference to a more general document. Klamath-Siskiyou,\\n387 F.3d at 998.\\n\\n Plaintiffs point out that the EIS appeared to contemplate\\nfurther analysis of the environmental impacts of the Phase II\\nturbines in particular. But an agency’s desire for even more\\ninformation about the environmental impacts of a project\\ndoes not mean that the alternatives were not adequately\\nanalyzed. Here, they were.\\n\\n Finally, we note that we do not confront circumstances\\nwhere Defendants were entirely unaware of the possibility\\nof alternatives to the twenty-turbine configuration. Our\\nprecedent suggests that a non-NEPA document cannot cure\\nthe deficiencies of an EIS. See Muckleshoot, 177 F.3d at\\n811. But Plaintiffs’ suggestion that BIA failed to consider\\nany alternatives “that entailed building some but not all of\\nthe proposed ridgeline turbines,” either in the EIS or in “any\\nsubsequent document” is inaccurate. The EIS specifically\\ncontemplated that “all, none or part of the second portion of\\nthe project would be authorized.” Subsequent to the\\npromulgation of the EIS, the Supplemental Protection Plan\\nconsidered seven plans in which the turbines most\\nthreatening to the eagle population would be curtailed during\\ntimes of high eagle activity. These plans were similar to\\nconsideration of a less-than-full build. In addition, in\\nresponse to a comment to the Supplemental Protection Plan\\nraised by FWS asking BIA to consider a build of only the six\\nsouthernmost turbines, BIA explained why this mid-range\\nalternative would not have been practical, noting that\\n“development of only 6 turbines would not be sufficient to\\njustify the investment in infrastructure to access the\\n6 turbines which would result in no revenue source for the\\n[Tribe].” Although we do not suggest that post-EIS analysis\\ncan serve as a substitute for EIS reasonable alternative\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 19\\n\\nanalysis, these documents make it plain that BIA did not\\nsimply ignore the issue.\\n\\n C\\n\\n Next, Plaintiffs argue that BIA should have prepared a\\nsupplemental EIS (“SEIS”) to analyze information that arose\\nafter the EIS was published.\\n\\n In general, NEPA requires agencies to prepare an SEIS\\nwhen “[t]here are significant new circumstances or\\ninformation relevant to environmental concerns and bearing\\non the proposed action or its impacts.” 40 C.F.R.\\n§ 1502.9(c)(ii). We have held that NEPA does not require\\nagencies to prepare an SEIS “every time new information\\ncomes to light” but instead requires agencies to “maintain a\\n‘hard look’ at the impact of agency action when the ‘new\\ninformation is sufficient to show that the remaining action\\nwill affect the quality of the human environment in a\\nsignificant manner or to a significant extent not already\\nconsidered.’” League of Wilderness Defs./Blue Mountains\\nBiodiversity Project v. Connaughton, 752 F.3d 755, 760 (9th\\nCir. 2014) (quoting Marsh v. Or. Nat. Res. Council, 490 U.S.\\n360, 373–74 (1989)).\\n\\n Plaintiffs assert five grounds in support of their\\nargument, but we are not persuaded that additional\\nenvironmental review was required. First, Plaintiffs contend\\nthat information in the Supplemental Protection Plan, along\\nwith third-party comments on that plan, met the “new and\\nsignificant” threshold requiring an SEIS. Whether new\\ninformation is sufficiently significant to necessitate an SEIS\\n“turns on the value of the new information to the still\\npending decisionmaking process.” Marsh, 490 U.S. at 374.\\n\\f20 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\n Plaintiffs specify several new pieces of information that\\nthey say triggered BIA’s duty to prepare an SEIS. New\\nsurveys described in the Supplemental Protection Plan\\nrevealed at least eight occupied golden eagle territories\\nwithin ten miles of Phase II, two at which young had been\\nsuccessfully produced, and two at which eaglets failed to\\nfledge. The Plan also indicated that the nests nearest Phase\\nII continued to be active, and that the flight path of its\\nfledglings overlapped with all of the turbine sites. It further\\nrevealed that no eagle territory produced young in every\\nyear. In addition, new flight surveys showed that 73 of 123\\ndocumented eagle flight paths traversed Phase II. Finally,\\ncomments from FWS raised concerns about BIA’s lack of\\nexpertise on potential impacts to eagles, as well as the\\nimportance of the nearby nest to eagle populations in the\\nareas and to FWS’s plans.\\n\\n Although some details are more specific than\\ninformation discussed in the EIS, the facts identified by\\nPlaintiffs are not both new and significant. The EIS\\nrecognizes the presence of eagle territories in the area, the\\nmovement of those eagles from different territories in\\ndifferent years with varying levels of reproductive success,\\nand the existence of the territory nearest Phase II. The EIS\\nalso discloses that eagles traverse the Phase II ridgeline.\\nThroughout, the EIS acknowledges that the project poses a\\nthreat to eagles. Although aspects of FWS’s opposition\\ncould be characterized as “new,” it does not suggest the\\nproject will impact the environment “to a significant extent\\nnot already considered.” Marsh, 490 U.S. at 374. We agree\\nwith the district court that the new information is not\\nsignificant because “it merely confirmed concerns that the\\n2011 EIS already articulated and considered.” Protect Our\\nCommunities Found. v. Black, 240 F. Supp. 3d 1055, 1067\\n(S.D. Cal. 2017).\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 21\\n\\n Second, Plaintiffs argue that BIA cannot rely on the EIS\\n(without supplemental review) because the EIS “rejected”\\nthe Phase II turbines.\\n\\n In Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d\\n549, 559 (9th Cir. 2006), we held that an agency could not\\nrely on an EIS to take an action where the EIS\\n“unequivocal[ly] reject[ed]” that action. We reasoned that\\nan EIS cannot supply the requisite environmental analysis to\\nsupport a decision directly contrary to its conclusions. Id.\\nIn that case, we required the agency to conduct supplemental\\nenvironmental review. Id.\\n\\n But here, the EIS did not “reject” the Phase II turbines.\\nInstead, it determined that the ridgeline turbines posed\\nparticular risks to the eagles and that further study was\\nrequired to understand and potentially mitigate those risks.\\nThe EIS fully contemplated and considered potential\\nenvironmental impacts of the Phase II turbines, and the BIA\\ntook steps to mitigate risks.\\n\\n Third, Plaintiffs argue that the new information required\\nan SEIS because it met the criteria for “significance” under\\nNEPA regulations. See 40 C.F.R. § 1508.27(b).\\nSpecifically, Plaintiffs contend that new information showed\\nthat Phase II is (1) close to cultural resources and\\necologically critical areas; (2) highly controversial;\\n(3) related to other actions with individually insignificant\\nbut cumulatively significant impacts, i.e., other energy\\nprojects in the area that threaten eagles; and (4) in violation\\nof federal law. But the EIS had already addressed (1) the\\nimpact to eagles, and the cultural importance of the eagles;\\n(2) FWS’s comments critical of BIA’s conclusions and\\nanalysis; (3) additional impacts to eagles from other\\ndevelopments; and (4) FWS’s concern that Phase II will not\\nqualify for a take permit under the BGEPA. In short, any\\n\\f22 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\nadditional information did not raise new issues that were\\n“not already considered” in the EIS. Marsh, 490 U.S. at 374.\\n\\n Fourth, Plaintiffs argue that BIA’s failure to prepare\\nadditional environmental analysis violated the APA’s “hard\\nlook” requirement because it did not adequately respond to\\nthe comments of FWS and CDFW. In Friends of the\\nClearwater v. Dombeck, we said that “[a]n agency that has\\nprepared an EIS cannot simply rest on the original\\ndocument”; instead, it “must be alert to new information that\\nmay alter the results of its original environmental analysis,\\nand continue to take a ‘hard look at the environmental effects\\nof [its] planned action.’” 222 F.3d 552, 557 (9th Cir. 2000)\\n(quoting Marsh, 490 U.S. at 371). 4 We conclude that BIA\\ndid, in fact, continue to maintain a hard look at the\\nenvironmental impacts, as is shown by the extensive\\ndiscussion on the impacts to golden eagles in the ROD and\\nSupplemental Protection Plan. We hold that BIA satisfied\\nthe “hard look” requirement.\\n\\n Fifth and finally, Plaintiffs contend that Defendants were\\nrequired to, but did not, assess the significance of the new\\ninformation. Agencies must evaluate new information’s\\nsignificance and make a reasoned determination of whether\\n 4\\n Plaintiffs cite League of Wilderness Defenders, 309 F.3d at 1192,\\nfor the proposition that “the apparently unanswered concerns of a sister\\nagency simply do not measure up to the requirements in this Circuit for\\na ‘hard look.’” But Plaintiffs take that quote out of context; what the\\ncourt says is that “the lack of any analysis” whatsoever of an\\nenvironmental impact, “coupled with contradictory statements in the\\nProject Guidelines, EIS, Record of Decisions, and the apparently\\nunanswered concerns of a sister agency” do not measure up to our hard\\nlook requirements. Id. (emphases added). Here, even if BIA left some\\nof FWS’s concerns unanswered, it did so in a context where, in contrast\\nto Forsgren, its EIS, ROD, and Supplemental Protection Plan had\\nthoroughly considered the key issues that the other agency raised.\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 23\\n\\nit is of such significance as to require a supplemental EIS.\\nSee id. at 558. In Dombeck, we held that an agency erred\\nwhere there was “no evidence in the record” that the agency\\neven “considered whether [the interim designation of seven\\nnew sensitive species was] sufficiently significant to require\\npreparation of [a supplemental EIS].” Id. But in Great Old\\nBroads for Wilderness v. Kimbell, 709 F.3d 836, 855 (9th\\nCir. 2013), we held that, at least where a change in project\\ndesign is at issue, an ROD that states that the EIS “fully\\nanalyzed” the relevant questions satisfied the requirement to\\nassess the need for supplemental analysis.\\n\\n Here, the ROD states that the EIS “included an analysis\\nof all environmental issues associated with construction and\\noperation” of Phase II turbines. As discussed above, no new\\nenvironmental issues, such as a new sensitive species\\ndesignation, arose in the interim. Moreover, BIA addressed\\nalmost all of the purportedly new information in the ROD,\\nthe Supplemental Protection Plan, and its response to\\ncomments, even if it never stated that the information was\\nnot “significant” and therefore did not require more analysis.\\n\\n D\\n\\n Plaintiffs’ final two challenges to BIA’s decision\\nconcern the agency’s decision not to require Tule to obtain a\\nBGEPA permit from FWS. FWS recommended that BIA\\ncondition its approval on Tule obtaining a BGEPA permit\\nfrom FWS. FWS pointed out that requiring a permit before\\napproval would allow Tule to consider different turbine\\nsiting designs in response to BGEPA permit requirements\\nbefore construction began on the turbines—before it was too\\nlate to make necessary modifications to comply. FWS also\\nsuggested that the design BIA approved would “not likely\\nmeet the conservation standard” for golden eagles and would\\nnot likely receive a BGEPA permit.\\n\\f24 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\n Despite FWS’s concerns, BIA only required Tule to\\napply for a permit before it began operation of the turbines.\\nBIA did not require Tule to obtain a permit before Tule\\nbegan construction, as the FWS had urged BIA to do.\\nNevertheless, the ROD explicitly noted that Tule “must\\ncomply with all applicable Federal laws, including any\\nrequirements for an eagle take permit under the BGEPA.”\\nAnd BIA warned that “any take of eagles caused by the\\nProject, prior to the issuance of an eagle take permit,\\nconstitutes a violation of the [Eagle Act] that the FWS may\\nrefer to the Department of Justice for enforcement.”\\n\\n We firmly reject Plaintiffs’ false contention, pressed at\\noral argument, that BIA intimated that Tule could comply\\nwith BGEPA merely by applying for a permit. To the\\ncontrary, the ROD said that Tule would comply with BIA’s\\nrequirements for approval by applying for a permit. No\\nperson could seriously suggest that Tule would comply with\\nBGEPA’s requirement merely by applying for a permit. To\\nthe contrary, the ROD confirms that Tule must comply with\\n“any requirements for an eagle take permit under the\\nBGEPA” and spells out the consequences of noncompliance.\\nIf Tule were to violate the BGEPA, it would do so at the risk\\nof civil and criminal penalties.\\n\\n 1\\n\\n We next address Plaintiffs’ argument that BIA’s decision\\nwas not in accordance with the law. Under the APA, federal\\nagency action is invalid if it is “not in accordance with the\\nlaw.” 5 U.S.C. § 706(2)(A). Applying this rule, we have\\ninvalidated agency action that sanctioned unlawful conduct\\nby third parties. See, e.g., Anderson v. Evans, 371 F.3d 475,\\n480 (9th Cir. 2004) (holding agency erred by permitting\\nunlawful hunting of whale in reliance on an incorrect legal\\ninterpretation); Wilderness Soc’y v. U.S. Fish & Wildlife\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 25\\n\\nServ., 353 F.3d 1051, 1067 (9th Cir. 2003) (en banc)\\n(holding agency erred by permitting “commercial\\nenterprise” in area where commercial activities were\\nprohibited by statute).\\n\\n But we explained in Protect Our Communities I that “the\\nAPA does not target regulatory action by [an agency] that\\npermits a third-party grantee like Tule to engage in otherwise\\nlawful behavior, and only incidentally leads to subsequent\\nunlawful action by that third party.” 825 F.3d at 586. We\\nnoted that “BLM’s right-of-way did not sanction or\\nauthorize the taking of migratory birds without a permit; it\\nauthorized the development of a wind-energy facility.” Id.\\nat 587. We reasoned that “[w]ithout further indication of its\\ninvolvement in the putative violation, we cannot hold the\\nBLM complicit in future unlawful activity, separately\\ncommitted by a grantee, through a mere failure to intervene\\nat the permitting stage.” Id.\\n\\n That prior holding controls this case. Plaintiffs attempt\\nto distinguish Protect Our Communities I on the basis that\\nthe Phase II turbines pose a far greater threat to golden eagles\\nthan the Phase I turbines. But our reasoning in Protect Our\\nCommunities I did not depend on the degree of risk to eagles.\\nInstead, we emphasized that BLM had not authorized the\\ntake of eagles without securing permission from FWS. Id.\\nat 587 (noting that BLM “has not sanctioned or encouraged\\nan unlawful course of action by Tule,” and instead it “has\\ndone the opposite” by requiring compliance with “all\\napplicable laws and regulations”). Protect Our\\nCommunities I forecloses Plaintiffs’ challenge to BIA’s\\ndecision: because BIA, like BLM, required Tule to apply for\\na permit, and required Tule to comply with all applicable\\nlaws, BIA’s authorization was not in any way in violation of\\nthe law.\\n\\f26 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\n 2\\n\\n Plaintiffs further contend that BIA acted arbitrarily and\\ncapriciously by not conditioning its approval of Phase II on\\nTule obtaining a permit, especially where FWS had urged\\nBIA to do so.\\n\\n Under the arbitrary and capricious standard, “we are not\\nto substitute [our] judgment for that of the agency.” State\\nFarm, 463 U.S. at 43. A decision is arbitrary and capricious\\nonly if it “entirely failed to consider an important aspect of\\nthe problem, offered an explanation for its decision that runs\\ncounter to the evidence before the agency, or is so\\nimplausible that it could not be ascribed to a difference in\\nview or the product of agency expertise.” Id.\\n\\n We agree that for practical reasons it will be best for Tule\\nto seek a permit early in the construction process before it is\\ntoo late to make modifications that the BGEPA may require.\\nBut as we emphasized in Protect Our Communities I, Tule’s\\ncompliance with the BGEPA is between Tule and FWS.\\n825 F.3d at 588 (“BLM . . . is neither statutorily tasked with\\npolicing third-party compliance with the Eagle Act nor\\nresponsible for violations that might be independently\\ncommitted by grantees, such as Tule.”); see also 74 Fed.\\nReg. 44,843 (Sep. 11, 2009) (FWS regulation explaining that\\n“[p]ersons and organizations that obtain licenses, permits,\\ngrants, or other such services from government agencies are\\nresponsible for their own compliance with the Eagle Act and\\nshould individually seek permits”).\\n\\n Because compliance is Tule’s responsibility, BIA’s\\ndecision not to require the grant of the permit was not\\nirrational. Indeed, BIA had a sensible reason not to\\ncondition its approval on Defendants’ obtaining a permit. As\\nBIA explained in its ROD, FWS’s guidelines for BGEPA\\n\\f PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE 27\\n\\npermits were “not yet final” at the time BIA intended to\\nfinalize its approval. Rather than wait for FWS to finalize\\nits guidelines and issue (or deny) a permit, BIA decided to\\nget its own approval out of the way—without interfering\\nwith FWS’s administration of the BGEPA, and ensuring that\\nTule was well aware of its obligations under BGEPA and\\nother federal laws. BIA’s decision not to condition its\\napproval on prior acquisition of a permit from another\\nagency was not arbitrary or capricious.\\n\\n IV\\n\\n What is troubling about this case is that it appears that, if\\nand when the project proceeds, some eagles may die or have\\ntheir nests impaired diminishing reproduction. But the\\nprotections given by our environmental laws are not\\nabsolute. NEPA doesn’t control any substantive result but\\nrather requires procedural protections to ensure that a “hard\\nlook” was given to reasonable alternatives. The Endangered\\nSpecies Act doesn’t absolutely prohibit all deaths of\\nendangered species caused by development but rather\\nprohibits the incidental taking of endangered creatures’ lives\\nif done without a permit that specifically allows the\\nincidental take. The Bald and Golden Eagle Protection Act\\ndoesn’t outlaw every killing of the eagle, just take without a\\npermit.\\n\\n Of course, Tule must comply with BGEPA at all times\\nduring the construction and operation of the project. While\\nwe recognize the legitimate concerns about the well-being of\\nprotected eagles raised by Plaintiffs and FWS, we are\\npersuaded that those concerns can be addressed through the\\nBGEPA permitting process.\\n\\n At the same time, there are benefits to the Tribe and to\\nthe United States that will come from the project, and BIA\\n\\f28 PROTECT OUR COMMUNITIES FOUND’ N V. LACOUNTE\\n\\nhas a special concern to advance the interests of the Indian\\nnations under its jurisdiction. While that would not justify\\ndisregarding environmental laws when clearly applicable,\\nsee, e.g., Anderson, 371 F.3d at 494–502 (holding that Indian\\nnation should be enjoined from hunting whales absent a\\npermit under the MMPA), the interests of the Ewiiaapaayp\\nBand of Kumeyaay Indians weigh in favor of the Tribe in\\nthis close case involving potentially competing values.\\n\\n We therefore conclude that in the total circumstances of\\nthis case the EIS analysis was sufficient to satisfy NEPA. So\\nfar as the demands of NEPA and the APA are concerned,\\nthis project can proceed.\\n\\n AFFIRMED.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4477,"cells":{"id":{"kind":"number","value":4663419,"string":"4,663,419"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Cerner Middle East Limited v. Icapital, LLC"},"decision_date":{"kind":"string","value":"2019-09-23"},"docket_number":{"kind":"string","value":"17-35514"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Richard R. Clifton and Consuelo M. Callahan, Circuit Judges, and Roger T. Benitez,* District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"CLIFTON, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\n CERNER MIDDLE EAST LIMITED, a No. 17-35514\\n Cayman Islands Exempted\\n Company, D.C. No.\\n Plaintiff-Appellant, 3:16-cv-01631-\\n YY\\n v.\\n\\n ICAPITAL, LLC, a U.A.E. Limited OPINION\\n Liability Company; AHMED SAEED\\n MAHOUD AL-BADI AL-DAHARI,\\n Defendants-Appellees.\\n\\n\\n Appeal from the United States District Court\\n for the District of Oregon\\n Marco A. Hernandez, District Judge, Presiding\\n\\n Argued and Submitted October 12, 2018\\n Portland, Oregon\\n\\n Filed September 23, 2019\\n\\n Before: Richard R. Clifton and Consuelo M. Callahan,\\n Circuit Judges, and Roger T. Benitez,* District Judge.\\n\\n Opinion by Judge Clifton\\n\\n *\\n The Honorable Roger T. Benitez, United States District Judge for\\nthe Southern District of California, sitting by designation.\\n\\f2 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\n SUMMARY**\\n\\n\\n Quasi in Rem Jurisdiction\\n\\n The panel reversed the district court’s dismissal, for lack\\nof personal jurisdiction, of an action seeking enforcement of\\na foreign arbitration award against property in Oregon owned\\nby defendants.\\n\\n Quasi in rem jurisdiction exists when a plaintiff seeks to\\nenforce a judgment against a defendant’s in-state property.\\nDefendants argued that plaintiff could not enforce the\\narbitration award against the property until a court confirmed\\nthe arbitration panel’s conclusion that a defendant was\\nproperly within the arbitration panel’s jurisdiction. The\\ndistrict court agreed and dismissed for lack of quasi in rem\\njurisdiction.\\n\\n While the appeal was pending, the Court of Appeal of\\nParis confirmed the arbitration panel’s conclusion that the\\ndefendant was subject to its jurisdiction. The Ninth Circuit\\npanel held that plaintiff did not waive arguments based on\\nthe French court’s decision. The panel held that the French\\ncourt’s decision was entitled to recognition under the\\nprinciples of international comity. As a result, the elements\\nof quasi in rem jurisdiction were present. Plaintiff possessed\\na valid judgment against the defendant, who owned property\\nin Oregon. The panel therefore reversed the district court’s\\norder and remanded for further proceedings.\\n\\n\\n **\\n This summary constitutes no part of the opinion of the court. It has\\nbeen prepared by court staff for the convenience of the reader.\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 3\\n\\n COUNSEL\\n\\nWarren E. Gluck (argued) and Sean C. Sheely, Holland &\\nKnight LLP, New York, New York; David J. Elkanich and\\nGarrett S. Garfield, Holland & Knight LLP, Portland,\\nOregon; for Plaintiff-Appellant.\\n\\nGary I. Grenley (argued), Paul H. Trinchero, and Eryn\\nKarpinski Hoerster, Garvey Schubert Barer, Portland,\\nOregon, for Defendants-Appellees.\\n\\n\\n OPINION\\n\\nCLIFTON, Circuit Judge:\\n\\n This appeal asks us to determine whether an arbitration\\naward later confirmed by a court in France is enforceable\\nagainst property in Oregon owned by a named respondent in\\nthat arbitration who contends that the arbitration panel did not\\nhave jurisdiction over him.\\n\\n Plaintiff-Appellant Cerner Middle East Limited filed this\\naction in Oregon state court to enforce an arbitration award\\nagainst property in that state owned by Defendants-Appellees\\nAhmed Saeed Mohammed Al Badi Al Dhaheri1 and iCapital,\\nLLC. Quasi in rem jurisdiction exists when a plaintiff seeks\\nto enforce a judgment against a defendant’s in-state property.\\n\\n\\n 1\\n As sometimes happens with names translated from another\\nlanguage, Dhaheri’s name has been spelled in various ways, including\\nwithin briefs filed on his behalf and in the caption of this case. We use the\\nspelling initially used in the first brief filed in this court on his behalf in\\nthis case.\\n\\f4 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\nGlencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain\\nCo., 284 F.3d 1114, 1127 (9th Cir. 2002). Defendants\\nremoved the case to federal district court, where they argued\\nthat Cerner could not enforce the arbitration award against\\nOregon property owned by Dhaheri until a court confirmed\\nthe arbitration panel’s conclusion that Dhaheri was properly\\nwithin the panel’s jurisdiction. They therefore maintained\\nthat the award could not support the district court’s exercise\\nof quasi in rem jurisdiction. This district court agreed and\\ndismissed this action.\\n\\n While this appeal was pending, the Court of Appeal of\\nParis, a court with jurisdiction over Dhaheri, confirmed the\\narbitration panel’s conclusion that Dhaheri was subject to the\\npanel’s jurisdiction. We hold that the French court’s decision\\nis entitled to recognition under the principles of international\\ncomity. As a result, the elements of quasi in rem jurisdiction\\nare present. Cerner possesses a valid judgment against\\nDhaheri, who owns property in Oregon. We therefore reverse\\nthe district court’s order dismissing this case for lack of\\npersonal jurisdiction and remand for further proceedings.\\n\\nI. Background\\n\\n This action is one of several disputes between Cerner, on\\none side, and Dhaheri and entities he controls on the other. 2\\n\\n\\n 2\\n Another one of those disputes resulted in an appeal from a decision\\nby the U.S. District Court for the Western District of Washington, argued\\nto the same panel of this court on the same day. Although there is\\nsubstantial overlap in the factual background, the issues in the two appeals\\nare distinct and they are resolved in separate opinions. For the opinion in\\nthat case, see Cerner Middle East Limited v. Belbadi Enterprises, LLC,\\nNo. 17-35157, ___ F.3d ____ (9th Cir. 2019).\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 5\\n\\n Plaintiff Cerner Middle East Limited (identified in this\\nopinion as “Cerner”) is a Cayman Islands corporation with its\\nprincipal place of business in Kansas City, Missouri. It is a\\nsubsidiary of Cerner Corporation, a medical services\\ntechnology company based in Kansas City, whose revenue in\\n2018 was excess of $5 billion and whose stock is listed on the\\nNASDAQ exchange.\\n\\n Dhaheri, a businessman with substantial holdings, is a\\ncitizen and domiciliary of the United Arab Emirates\\n(“UAE”). iCapital, LLC is a UAE limited liability\\ncorporation with its principal place of business in Abu Dhabi,\\nUAE. Cerner alleges that Dhaheri owns and controls\\niCapital, LLC. iCapital’s predecessor was iCapital S/E, a\\nUAE sole proprietorship through which Dhaheri did business.\\n\\n In 2008, the United Arab Emirates Ministry of Health\\nawarded iCapital S/E a contract to develop medical\\ninformation software for use in the UAE. iCapital S/E and\\nCerner signed a contract (the “Cerner Business Agreement”\\nor “CBA”) under which Cerner would provide hardware,\\nsoftware, and services for the UAE project. The CBA\\nrequired the parties to submit any disputes to binding\\narbitration under the rules of the International Chamber of\\nCommerce (“ICC”), specified that the seat of arbitration shall\\nbe in Paris, France, and stated that the language of an\\narbitration shall be English. The contract also contained a\\nchoice of law clause that stated that it “shall be governed by,\\nconstrued, interpreted and enforced in accordance with the\\nlaws of the State of Missouri[.]”\\n\\n Cerner filed a request for arbitration with the ICC in\\nSeptember 2012. It contended that iCapital S/E had failed to\\nmake payments due under the CBA. It also complained that\\n\\f6 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\niCapital S/E, a sole proprietorship, had been reorganized into\\niCapital, LLC, a limited liability company, without Cerner’s\\nconsent, which Cerner alleged was contrary to the terms of\\nthe CBA.\\n\\n That dispute appeared to have been settled three months\\nlater. The settlement divided iCapital’s liability into two\\nparts: the amount that iCapital owed Cerner for the work\\nalready completed under the CBA (the “Overdue Amount”),\\nand the amount that iCapital would owe Cerner for the future\\nwork contemplated by the CBA (the “Future Payments”).\\nThe liability of iCapital for the Overdue Amount was\\naddressed in a Settlement and Payment Agreement\\n(“Settlement Agreement”) signed by Cerner and iCapital,\\nLLC. It set the amount owed to Cerner for past performance\\nand waived claims for past acts or omissions by the other\\nparty and its affiliates and their directors, officers, employees,\\nagents, and representatives. The liability for the Future\\nPayments was addressed in Amendment No. 5 to the CBA,\\nalso signed by Cerner and iCapital, LLC. That Amendment\\n“re-schedule[d] the Future Payments owed to Cerner” under\\nthe original CBA.\\n\\n Amendment No. 5 also revised the language of the\\noriginal CBA’s arbitration clause, retaining the elements\\ndescribed above that required the parties to submit any\\ndisputes to binding arbitration under the rules of the ICC to\\nbe conducted in English in Paris. The Settlement Agreement\\nadopted the arbitration clause set forth in Amendment No. 5\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 7\\n\\nto the CBA, and the choice of law clause set forth in the\\noriginal CBA.3\\n\\n Unfortunately, the settlement did not bring a lasting\\npeace. In August 2013, Cerner initiated a second request for\\narbitration against iCapital, LLC and Dhaheri with the ICC,\\ncontending, among other things, that iCapital had failed to\\nmake payments called for by the Settlement Agreement.\\niCapital responded to the notification by objecting to the\\narbitration. Dhaheri declined to respond to correspondence\\nfrom the arbitration administrator. The International Court of\\nArbitration of the ICC concluded that the arbitration should\\nproceed against both respondents and appointed a three-\\nmember arbitral tribunal (“Tribunal”).\\n\\n The Tribunal issued its award in July 2015. It determined\\nthat it had jurisdiction over both iCapital, LLC and Dhaheri\\npersonally. It held that iCapital, LLC had agreed to submit to\\narbitration by signing the Settlement Agreement and\\nAmendment No. 5 to the CBA. The Tribunal also concluded\\nthat it could exercise jurisdiction over Dhaheri on two\\nseparate grounds. First, Dhaheri was personally liable, as a\\nsole proprietor, for the obligations of iCapital S/E under the\\noriginal CBA and had consented to be bound by the\\narbitration clause in the original CBA. The Tribunal\\nconcluded that he had not been released from his obligations\\nas the “owner” of iCapital S/E, including the agreement to\\narbitrate disputes that arose up to the execution of the\\n\\n\\n 3\\n To induce Cerner to enter the settlement, another entity owned and\\ncontrolled by Dhaheri that was not previously involved in the transaction,\\nBelbadi Enterprises, LLC entered into agreements to guarantee the\\nobligations of iCapital (the “Guarantees”). Belbadi is a party to the other\\nappeal presented to this panel, but is not otherwise involved in this appeal.\\n\\f8 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\nSettlement Agreement, at which point Cerner agreed to\\nrecognize the restructuring of iCapital S/E into iCapital, LLC.\\nSecond, Dhaheri was the alter ego of iCapital, which had\\nsigned a binding arbitration agreement. As to the merits of\\nCerner’s claim, the Tribunal held that both iCapital, LLC and\\nDhaheri were liable to Cerner for more than $62 million in\\ndamages.\\n\\n After the Tribunal ruled in its favor, Cerner filed a series\\nof actions in the United States that sought to enforce either\\nthe Arbitration Award or the Guarantees. This is one of those\\nactions.\\n\\n Cerner initiated this case by filing a verified complaint in\\nOregon state court seeking to attach funds in an Oregon bank\\naccount owned by Dhaheri. To establish jurisdiction, Cerner\\nrelied on a quasi in rem theory. Quasi in rem jurisdiction\\nexists when a plaintiff seeks to collect on an existing\\njudgment by executing on the defendant’s in-state property.\\nGlencore Grain, 284 F.3d at 1127.\\n\\n Defendants removed the case to federal court. They then\\nfiled a motion to dismiss for lack of personal jurisdiction\\nunder Federal Rule of Civil Procedure 12(b)(2). In that\\nmotion, they maintained that the district court could not rely\\non the quasi in rem theory because Cerner did not possess a\\nvalid judgment against Dhaheri.4 Specifically, they\\ncontended that the Tribunal’s award could not be enforced\\nbecause the Tribunal lacked the authority to rule on the issue\\nof whether Dhaheri was subject to arbitration. While\\n\\n\\n 4\\n While Defendants did not dispute the validity of the Tribunal’s\\naward against iCapital, Cerner has not identified any Oregon property\\nowned by iCapital.\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 9\\n\\nDefendants apparently agreed that a court could confirm the\\nTribunal’s decision, they contended that to make that\\ndetermination a court needed to have jurisdiction over\\nDhaheri, which the district court in Oregon did not have. The\\ndistrict court agreed and granted Defendants’ motion to\\ndismiss.\\n\\n This appeal followed. In the initial briefing, Defendants\\nrelied on the same arguments, that (1) the Tribunal could not\\nindependently determine whether Dhaheri had agreed to\\narbitrate, and (2) the district court could not confirm the\\nTribunal’s decision because he was “entitled to have a court\\nof competent jurisdiction determine whether he is bound by\\nthe arbitration provision [in the SPA and CBA].”\\n\\n While this appeal was pending, on October 16, 2018, the\\nCourt of Appeal of Paris (the “Paris Court”) affirmed a\\nFrench trial court decision that confirmed the Arbitration\\nAward. In reaching that conclusion, the Paris Court\\nspecifically concluded that “it was rightly that the [Tribunal]\\ndeclared [that it] had jurisdiction with respect to [Dhaheri].”5\\n\\n We asked the parties to submit supplemental briefs\\naddressing the impact of the Paris Court’s decision on this\\ncase. In their supplemental briefing, Defendants implicitly\\nacknowledged the Paris Court as a court of competent\\njurisdiction. They nevertheless continued to assert that the\\nArbitration Award should not provide the basis for quasi in\\nrem jurisdiction here.\\n\\n\\n 5\\n The decision of the Paris Court has been provided to us in its\\noriginal French language form and also translated into English. We have\\nrelied upon the latter. The parties have not disputed the authenticity of the\\ndecision or the accuracy of the translation.\\n\\f10 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\nII. Discussion\\n\\n “We review de novo a district court’s dismissal for lack\\nof personal jurisdiction.” Ranza v. Nike, Inc., 793 F.3d 1059,\\n1068 (9th Cir. 2015). “Where, as here, the defendant’s\\nmotion is based on written materials rather than an\\nevidentiary hearing, the plaintiff need only make a prima\\nfacie showing of jurisdictional facts to withstand the motion\\nto dismiss.” Id. (quotation marks omitted).\\n\\n Cerner contends that the district court possesses quasi in\\nrem jurisdiction. The parties agree that so-called “type two\\nquasi in rem” jurisdiction, see Restatement (First) of\\nJudgments § 32 (1942), requires that (1) a court of competent\\njurisdiction rendered a judgment against Dhaheri, and\\n(2) Dhaheri owns property in the forum state. See Office\\nDepot Inc. v. Zuccarini, 596 F.3d 696, 700 (9th Cir. 2010).\\nIt does not appear disputed that Dhaheri owns property in\\nOregon, specifically a bank account, so it is the first prong\\nthat is at issue here, whether a judgment against Dhaheri has\\nbeen rendered by a court of competent jurisdiction.\\n\\n The argument by Defendants that persuaded the district\\ncourt was that the Tribunal’s award against Dhaheri was\\nineffective because a court with jurisdiction over Dhaheri had\\nnot determined that the Tribunal had jurisdiction over\\nDhaheri.6 Although there is now a decision by the Paris\\n\\n\\n\\n\\n 6\\n Cerner argued to the contrary before the district court and to us, but\\nwe do not find it necessary at this point to discuss those arguments.\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 11\\n\\nCourt that appears to satisfy that requirement,7 Defendants\\nassert that we should not recognize that decision for two\\nreasons: (1) Cerner has waived arguments based on the\\nFrench decision, and (2) the French decision is not entitled to\\nrecognition under the principles of international comity.\\nNeither contention has persuaded us.\\n\\n A. Waiver of arguments based on the French decision\\n\\n Defendants first argue that Cerner cannot rely on the\\ndecision of the Court of Appeal of Paris because Cerner did\\nnot cite the French proceedings to the district court.\\nAlthough the Paris Court did not issue its decision until after\\nthe district court ruled, Defendants contend that Cerner could\\nhave cited the French trial court judgment issued on May 23,\\n2016. That decision confirmed that the Arbitration Award\\nwas valid and enforceable.\\n\\n We conclude that Cerner did not waive its arguments\\nbased on the Paris Court’s decision. It appears that under\\nFrench law, trial court judgments are “stayed pending the\\nappellate court decision.” Marine Travelift, 324 F. Supp. 3d\\nat 1007. Defendants concede that the trial court judgment\\nwas stayed on February 9, 2017, prior to the district court’s\\ndecision. In addition, it does not appear that the French trial\\ncourt decision spoke clearly to the relevant issue. The present\\ndispute turns on whether a court has determined that the\\n\\n\\n 7\\n It appears that the decision of the Court of Appeals of Paris is\\nconsidered final even if an appeal to a higher court in France is possible.\\nSee Societe dAmenagement et de Gestion de lAbri Nautique v. Marine\\nTravelift Inc., 324 F. Supp. 3d 1004, 1007–08 (E.D. Wis. 2018).\\nDefendants did not challenge the finality of the Paris Court decision in\\ntheir supplemental briefing.\\n\\f12 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\nTribunal had jurisdiction over Dhaheri. According to\\ntranslated excerpts8 of the French trial court decision, the trial\\ncourt enforcement order did not discuss that issue. Instead,\\nit simply stated that the Arbitration Award did “not contain\\nany provision contrary to the law or to public order.” In\\ncontrast, the Paris Court decision includes a detailed analysis\\nexplaining the basis for its conclusion that Dhaheri was\\nsubject to the jurisdiction of the Tribunal. Thus, the Paris\\nCourt decision is uniquely relevant here.\\n\\n Cerner’s failure to cite the French trial court judgment to\\nthe district court does not give us reason to disregard the later\\ndecision of the Paris Court.\\n\\n B. Recognition of a foreign court decision\\n\\n Defendants also contend that the decision of the Paris\\nCourt is not entitled to recognition. “The extent to which the\\nUnited States, or any state, honors the judicial decrees of\\nforeign nations is a matter of choice, governed by the comity\\nof nations.” Asvesta v. Petroutsas, 580 F.3d 1000, 1010 (9th\\nCir. 2009) (quotations omitted). “Comity is the recognition\\nwhich one nation allows within its territory to the legislative,\\nexecutive or judicial acts of another nation.” Id. at 1010–11\\n(quotations omitted). “Extension of comity to a foreign\\njudgment is neither a matter of absolute obligation, on the one\\nhand, nor of mere courtesy and good will, upon the other.”\\nId. at 1011 (quotations omitted).\\n\\n The considerations identified by the Supreme Court in\\nHilton v. Guyot, 159 U.S. 113 (1895), provide “the guiding\\n\\n 8\\n As Defendants have requested, we take judicial notice of the\\nexcerpts of the French trial court decision they submitted.\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 13\\n\\nprinciples of comity.” Asvesta, 580 F.3d at 1011; see also\\nJacobs v. Tristar Indus., Ltd., 701 P.2d 455, 457–58 (Or. Ct.\\nApp. 1985). In Hilton, the Supreme Court held that foreign\\ndecisions should be accorded deference unless an underlying\\nissue renders the judgment suspect. For instance, we may\\ndisregard a foreign judgment if it was not decided “‘under a\\nsystem of jurisprudence likely to secure an impartial\\nadministration of justice,’” or if it was procured by fraud.\\nAsvesta, 580 F.3d at 1011 (quoting Hilton, 159 U.S.\\nat 202–03).\\n\\n None of those conditions apply here. Defendants do not\\nchallenge the administration of justice in France, either\\ngenerally or in this particular case. As noted above, the\\nparties themselves specified that Paris would be the location\\nof any arbitration in both the original contract, the CBA, and\\nin the revisions to that agreement, the Settlement Agreement\\nand Amendment No. 5.\\n\\n Defendants instead argue in essence that the Paris Court\\ndecision does not deserve deference because it was incorrect.\\nUnder certain circumstances, we may examine the merits of\\na foreign decision and conclude that it should not be\\nrecognized. In Asvesta, for example, we were asked to decide\\nwhether a Greek court decision was entitled to recognition.\\nIt involved the Hague Convention on the Civil Aspects of\\nInternational Child Abduction, “an international agreement\\ngoverning the return of children removed, usually by one\\nparent in order to gain a custody advantage over the other\\nparent, from their ‘habitual residence.’” 580 F.3d\\nat 1002–03. Because the Greek court decision did not\\ninvolve the interpretation of Greek law, we examined the\\nsubstance of the Greek court’s decision and held that “we\\nmay properly decline to extend comity to [it] if it clearly\\n\\f14 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\nmisinterprets the Hague Convention, contravenes the\\nConvention’s fundamental premises or objectives, or fails to\\nmeet a minimum standard of reasonableness.” Id. at 1014.\\n\\n Similarly, this case involves an international convention,\\nthe Convention on the Recognition and Enforcement of\\nForeign Arbitral Awards9 (the “Convention”) and does not\\ninvolve the interpretation of French law. We may refuse to\\nrecognize the Paris Court decision if it “clearly misinterprets\\nthe [] Convention, contravenes the Convention’s fundamental\\npremises or objectives, or fails to meet a minimum standard\\nof reasonableness.” Id.\\n\\n Although Defendants contend that the Paris Court’s\\ndecision conflicts with the Convention, that argument rests on\\nthe premise that the decision failed to apply the law specified\\nby the parties as controlling.10 That is Missouri law, which\\nDefendants acknowledge includes U.S. federal law regarding\\narbitrability under the Federal Arbitration Act (the “FAA”).\\nAccording to Defendants, the Paris Court decision should not\\nbe recognized primarily because it was based on “usual\\npractices of international trade,” not U.S. law.\\n\\n As noted above, our review of the decision of the district\\ncourt here is de novo, but it is important to recognize that our\\nreview of the French court decision is not. We do not sit as\\n\\n 9\\n The United States is a party to that multilateral treaty, sometimes\\ncalled “the New York Convention.” Convention on the Recognition and\\nEnforcement of Foreign Arbitral Awards, June 10, 1958, T.I.A.S. No.\\n6997 (Dec. 29, 1970).\\n 10\\n Because we conclude that the Paris Court’s decision is entitled to\\ncomity even if Missouri law is controlling, we do not need to decide\\nwhether the Paris Court was in fact bound by Missouri law.\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 15\\n\\nan appellate court to review the Court of Appeal of Paris by\\ndeciding whether U.S. law was misapplied.\\n\\n Indeed, the parties explicitly contracted for the resolution\\nof disputes to be by arbitration conducted in Paris, even while\\nproviding that their agreements should be governed by\\nMissouri law, including federal law pertaining to arbitrations.\\nDefendants have affirmatively argued that the court in\\nOregon lacks authority to make a decision regarding the\\njurisdiction of the Tribunal over Dhaheri because it does not\\nhave personal jurisdiction over Dhaheri, a citizen and resident\\nof the UAE. The same argument would appear to apply to\\nany other court located in this country. It could hardly be a\\nsurprise that the Arbitration Award in this case would wind\\nup being reviewed by a French court, subject to review by a\\ncourt of appeals in France, not likely to be experienced in\\nMissouri or U.S. law. That was nearly inevitable based on\\nthe agreements entered by the parties. Under these\\ncircumstances, a foreign court would have to miss the mark\\nby a very wide margin to fail to meet a minimum standard of\\nreasonableness.\\n\\n C. The decisions in this case\\n\\n Using our customary terminology, the Paris Court in\\neffect affirmed a decision by a French trial court that\\nconfirmed the Arbitration Award entered by the Tribunal.\\nThat Award explicitly explained the Tribunal’s determination\\nthat Dhaheri was subject to its jurisdiction. We conclude that\\nthe decision of the Paris Court deserves recognition.\\n\\n The Tribunal was mindful that there were different bodies\\nof law that might apply to the question of jurisdiction. In the\\nArbitration Award it specifically identified the possibility of\\n\\f16 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\napplying Missouri law (the law of the contract), French law\\n(the law of the place of arbitration), UAE law (the law where\\niCapital, LLC was incorporated and Dhaheri resided), and\\ntransnational principles. Its subsequent discussion on the\\nsubject cited to several Missouri and federal court decisions,\\nand that appeared to be what the Tribunal primarily relied\\nupon. The Tribunal offered two separate reasons for its\\nconclusion that Dhaheri was subject to its jurisdiction.\\n\\n First, the Tribunal reasoned that Dhaheri was the sole\\nproprietor of iCapital S/E. Citing UAE law, the law that\\ndirectly governed the responsibilities of a UAE sole\\nproprietorship, it observed that Dhaheri was “personally\\nliable for all of iCapital S/E’s obligations.” iCapital S/E\\nsigned the original CBA. The Tribunal therefore held that\\nbecause iCapital S/E did not have a legal personality\\nindependent of Dhaheri, Dhaheri was also bound by the\\narbitration clause in the original CBA. Although the Tribunal\\nrecognized that Cerner had waived any claims against\\niCapital S/E arising out of the original CBA by signing the\\nSettlement Agreement, it concluded that the waiver did not\\nextend to iCapital S/E’s owner, Dhaheri. The Arbitration\\nAward cited testimony by one witness that the parties\\nunderstood as much when they entered into the Settlement\\nAgreement. It noted as well that Dhaheri did not come within\\nthe ambit of the waiver contained in the Settlement\\nAgreement as he was not personally a party to that\\nagreement.\\n\\n Second, the Tribunal held that Dhaheri could be bound by\\nthe arbitration clauses in the Settlement Agreement and\\nAmendment No. 5 to the CBA as iCapital, LLC’s alter ego.\\nIt explained its finding that all three elements of alter ego\\nliability under Missouri law were present. Dhaheri’s\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 17\\n\\ninvolvement in the affairs of iCapital demonstrated that\\niCapital had no separate mind, will, or existence of its own.\\nDhaheri had used his control over iCapital to permit iCapital\\nto violate a positive legal duty by causing iCapital to breach\\nthe Settlement Agreement and CBA. The violation of that\\nlegal duty caused Cerner’s injuries. The Tribunal concluded\\nthat Dhaheri was subject to its jurisdiction under either\\ntheory.\\n\\n In its opinion, the Paris Court expressly discussed the\\nquestion of whether the Tribunal had jurisdiction over\\nDhaheri. It cited to the discussion of the Tribunal in support\\nof its conclusion on both grounds.\\n\\n It then made the reference to “the usual practices of\\ninternational trade” that appears to form the basis of\\nDefendants’ current argument: “Considering that, according\\nto the usual practices of international trade, the arbitration\\nclause inserted in an international contract has its own\\nspecific validity and effectiveness that require its application\\nto be extended to the parties directly involved in negotiating,\\nentering into, performing and/or terminating the contract.”\\nThe court concluded that because this action arose out of the\\ncontract Dhaheri signed as the sole proprietor of iCapital S/E,\\nDhaheri had necessarily participated in both negotiating and\\nentering into the Settlement Agreement and Amendment No.\\n5 to the CBA.\\n\\n The Paris Court thus held that the Tribunal correctly\\ndetermined that Dhaheri had agreed to arbitrate the claims at\\nissue. As it stated in the translated decision: “it was rightly\\nthat the Arbitrators declared they had jurisdiction with respect\\nto him.”\\n\\f18 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\n Defendants challenge the Paris Court decision as not\\nentitled to comity because it incorrectly relied on the “usual\\npractices of international trade.” According to Defendants,\\nunder the choice of law clause in the CBA, the Court of\\nAppeal of Paris should have applied Missouri and U.S. law.\\nThey therefore maintain that the court of appeal erred by\\nrelying on the principle that an arbitration clause can bind\\nthose involved in negotiating and entering into a contract.\\n\\n The reference in the Paris Court decision to “usual\\npractices of international trade” does not mean that was all\\nthat the Paris Court considered. To the contrary, its decision\\ncontained express references to specific paragraphs in the\\nArbitration Award in which the Tribunal discussed and relied\\nupon principles of Missouri law. That the French court may\\nnot have separately discussed those legal principles in its\\ndecision does not mean that it was unaware of those\\nprinciples or rejected them by basing its own decision on a\\ndifferent body of law. The Paris Court decision cannot be\\ndisregarded because it did not repeat the Tribunal’s\\ndiscussion regarding the law to be applied. Nor have\\nDefendants demonstrated that the reference by the Paris Court\\nto the “usual practices of international trade” was in such\\nconflict with Missouri or U.S. law that we can conclude that\\nit failed to meet a minimum standard of reasonableness.\\n\\n More broadly, Defendants misapprehend the focus of our\\nanalysis. In Asvesta, we recognized that a foreign decision\\nmay be entitled to comity even if we disagree with its\\nreasoning. 580 F.3d at 1012, 1021. We will extend comity\\nto a foreign decision unless the ultimate result fails to meet a\\nminimum standard of reasonableness. See id.\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 19\\n\\n It appears to us that the conclusion of the Paris Court that\\nDhaheri was properly bound by the arbitration clauses in the\\nvarious agreements was far from unreasonable under\\nMissouri law. The issue of “arbitrability” is one as to which\\nfederal arbitrability law is controlling. Mitsubishi Motors\\nCorp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626\\n(1985) (the “federal substantive law of arbitrability” applies\\nto “any arbitration agreement within the coverage of the\\n[FAA],” including cases falling under the Convention); see\\nalso State ex rel. Pinkerton v. Fahnestock, 531 S.W.3d 36, 49\\nn.8 (Mo. 2017) (en banc) (applying federal arbitrability law\\nin FAA action).\\n\\n Defendants argue that the question of whether the parties\\nagreed to arbitrate here was to be decided by the court, not\\nthe arbitrator. Assuming that there was such a requirement\\nhere, it was satisfied. The court decision can come after the\\narbitration has been conducted, when a court confirms the\\narbitrator’s award, as it did here. See generally First Options\\nof Chicago, Inc. v. Kaplan, 514 U.S. 938 940–41 (1995)\\n(considering challenge to arbitrability raised in confirmation\\nproceedings); Carpenters 46 N. California Ctys. Conference\\nBd. v. Zcon Builders, 96 F.3d 410, 416 (9th Cir. 1996)\\n(directing district court to review arbitrability in confirmation\\nproceedings).\\n\\n Similarly, as to substance, it does not appear to us that the\\nconclusion of the Paris Court failed to meet a minimum\\nstandard of reasonableness. “General contract and agency\\nprinciples apply in determining the enforcement of an\\narbitration agreement by or against nonsignatories.” Mundi\\nv. Union Sec. Life Ins. Co., 555 F.3d 1042, 1045 (9th Cir.\\n2009). One of those principles is “veil-piercing/alter ego.”\\nId.; accord Cent. Tr. Bank v. Graves, 495 S.W.3d 797, 803\\n\\f20 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\n(Mo. Ct. App. 2016). The French court was not well off the\\nmark in concluding the Tribunal could have reasonably\\nexercised jurisdiction over Dhaheri because iCapital, LLC\\nsigned a valid arbitration agreement and Dhaheri was\\niCapital’s alter ego.11\\n\\n Under Missouri law,12 the corporate veil may be pierced\\nand a court may conclude that an individual shareholder is the\\ncorporation’s alter ego if (1) the shareholder exerted control\\nover the corporation, which had “no separate mind, will or\\nexistence of its own,” (2) that control was “used by the\\ncorporation to commit fraud or wrong, to perpetrate the\\nviolation of statutory or other positive legal duty, or dishonest\\nand unjust act in contravention of [the] plaintiff’s legal\\nrights,” and (3) “[t]he control and breach of duty . . .\\nproximately cause[d] the injury . . . complained of.” Doe\\n1631 v. Quest Diagnostics, Inc., 395 S.W.3d 8, 18 (Mo. 2013)\\n(en banc) (emphases omitted); accord 66, Inc. v. Crestwood\\n\\n\\n 11\\n In different circumstances, we held in Yang v. Majestic Blue\\nFisheries, LLC that a party which did not itself sign an arbitration\\nagreement could not compel another party which had signed an agreement\\nwith another party to arbitrate in cases governed by the Convention.\\n876 F.3d 996, 998–1001 (9th Cir. 2017). That case can arguably be\\ndistinguished on the facts. More importantly, other circuits have\\ndisagreed on this issue. See, e.g., Int’l Paper Co. v. Schwabedissen\\nMaschinen & Anlagen GMBH, 206 F.3d 411, 418 n.7 (4th Cir. 2000)\\n(“[T]he estoppel doctrine also applies to nonsignatories to arbitration\\nagreements governed by the Convention.”). In light of that circuit split,\\nwe cannot conclude that it would have been unreasonable for the Tribunal\\nor the Paris Court to rely on an alter ego theory.\\n 12\\n State law governs this issue. See First Options, 514 U.S. at 944\\n(“When deciding whether the parties agreed to arbitrate a certain matter\\n. . . courts generally . . . should apply ordinary state-law principles that\\ngovern the formation of contracts[.]”).\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 21\\n\\nCommons Redevelopment Corp., 998 S.W.2d 32, 40 (Mo.\\n1999) (en banc). Based on Cerner’s complaint, all three\\nfactors are met here. As a factual matter, Defendants have\\nnot established anything erroneous in the Tribunal’s findings\\nto that effect.\\n\\n Numerous facts demonstrated Dhaheri’s control over\\niCapital, LLC, as the Tribunal found. Dhaheri held 99% of\\niCapital’s shares, was the “sole financial and operational\\ndecision-maker for iCapital,” and “call[ed] the shots” for\\niCapital. In addition, Dhaheri was “a source, if not the main\\nsource” of iCapital’s funds. Indeed, he referred to iCapital’s\\ndebts as his own, and he informed Cerner that iCapital would\\nmake the payments called for by the CBA when he personally\\nhad the funds. That was enough under Missouri law to\\nestablish that Dhaheri controlled iCapital. See State ex rel.\\nFamily Support Div. v. Steak’m Take’m LLC, 524 S.W.3d\\n584, 593 (Mo. Ct. App. 2017) (control established because\\n100% shareholder “had complete control over both the\\nfinances and management of [the corporation] and complete\\nauthority to make all decisions”); Mobius Mgmt. Sys., Inc. v.\\nW. Physician Search, L.L.C., 175 S.W.3d 186, 188 (Mo. Ct.\\nApp. 2005) (control established because 80% shareholder\\nmade all pertinent corporate decisions).\\n\\n The Tribunal concluded that Dhaheri used the corporate\\nform to violate his legal obligations under the CBA and SPA.\\nUnder Missouri law, a plaintiff can satisfy this element of\\nthe veil piercing test by showing “actual fraud” or\\n“undercapitalization.” Crestwood Commons, 998 S.W.2d\\nat 41. Dhaheri knew how much money iCapital owed Cerner\\nand promised that the necessary funds would be available, but\\nDhaheri failed to provide iCapital with that funding. As the\\nTribunal recognized, “it is now obvious that [iCapital] did not\\n\\f22 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\nhave sufficient funds for those payments.” Moreover, the\\nTribunal found that Dhaheri transformed iCapital into a\\nlimited liability company for the purpose of evading his\\ncontractual obligations under the CBA. Those facts\\nsupported piercing the corporate veil under Missouri law. See\\nMobius, 175 S.W.3d at 189 (second element established\\nbecause controlling shareholder “admitted that, when he\\nagreed to and signed [a consent judgment], he knew [the\\ncorporation] was unable to pay it”); see also Crestwood\\nCommons, 998 S.W.2d at 41 (second element established\\nbecause “the uncapitalized shell corporation was used to\\navoid debts arising out of the condemnation proceeding”).\\n\\n Finally, the third element of Missouri’s veil piercing test,\\nthat Cerner suffered injury as a result, was obviously met.\\nWhen Dhaheri failed to ensure that iCapital, LLC was able to\\nmake the payments that were due, Cerner suffered the injury\\nunderlying this action. Dhaheri’s actions satisfy Missouri’s\\ncausation standard. See Mobius, 175 S.W.3d at 189.\\n\\n The decision of the Paris Court reasonably confirmed the\\nTribunal’s conclusion that Dhaheri was iCapital, LLC’s alter\\nego. On that basis, it could have determined that Dhaheri was\\nbound by the arbitration clauses in the SPA and Amendment\\nNo. 5 to the CBA.13 We conclude that the Paris Court’s\\nconclusion that the Tribunal had jurisdiction did not fail to\\nmeet a minimum standard of reasonableness. That decision\\ndeserves recognition under the principles of international\\ncomity.\\n\\n\\n\\n 13\\n As it is unnecessary, we do not discuss the other ground relied upon\\nby the Tribunal and confirmed by the Paris Court, Dhaheri’s personal\\nresponsibility as the sole proprietor of iCapital S/E.\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 23\\n\\nIII. Conclusion\\n\\n In sum, we hold that a court of competent jurisdiction has\\ndetermined that Dhaheri was properly within the jurisdiction\\nof the arbitration. Because the Arbitration Award is\\nenforceable, Cerner has established both elements of quasi in\\nrem jurisdiction with respect to Dhaheri: Cerner possesses a\\nvalid judgment against Dhaheri, and Dhaheri owns property\\nthat is located in Oregon. Based on the Paris Court decision\\nissued subsequent to the district court’s order, we reverse the\\ndistrict court’s order dismissing this case for lack of personal\\njurisdiction and remand for further proceedings.14\\n\\n REVERSED and REMANDED for further\\nproceedings.\\n\\n\\n\\n\\n 14\\n As it does not appear that iCapital, LLC owns any property in\\nOregon, its status in the litigation at this point is unclear. That has not\\nbeen a topic of serious discussion on appeal. If they are interested, the\\nparties may address that question on remand.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4440672/\", \"author_raw\": \"CLIFTON, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"RICHARD R CLIFTON"},"judge2":{"kind":"string","value":"CONSUELO M CALLAHAN"},"judge3":{"kind":"string","value":"ROGER T BENITEZ"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4663419/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Cerner Middle East Limited v. Icapital, LLC\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n CERNER MIDDLE EAST LIMITED, a No. 17-35514\n Cayman Islands Exempted\n Company, D.C. No.\n Plaintiff-Appellant, 3:16-cv-01631-\n YY\n v.\n\n ICAPITAL, LLC, a U.A.E. Limited OPINION\n Liability Company; AHMED SAEED\n MAHOUD AL-BADI AL-DAHARI,\n Defendants-Appellees.\n\n\n Appeal from the United States District Court\n for the District of Oregon\n Marco A. Hernandez, District Judge, Presiding\n\n Argued and Submitted October 12, 2018\n Portland, Oregon\n\n Filed September 23, 2019\n\n Before: Richard R. Clifton and Consuelo M. Callahan,\n Circuit Judges, and Roger T. Benitez,* District Judge.\n\n Opinion by Judge Clifton\n\n *\n The Honorable Roger T. Benitez, United States District Judge for\nthe Southern District of California, sitting by designation.\n\f2 CERNER MIDDLE EAST LTD. V. ICAPITAL\n\n SUMMARY**\n\n\n Quasi in Rem Jurisdiction\n\n The panel reversed the district court’s dismissal, for lack\nof personal jurisdiction, of an action seeking enforcement of\na foreign arbitration award against property in Oregon owned\nby defendants.\n\n Quasi in rem jurisdiction exists when a plaintiff seeks to\nenforce a judgment against a defendant’s in-state property.\nDefendants argued that plaintiff could not enforce the\narbitration award against the property until a court confirmed\nthe arbitration panel’s conclusion that a defendant was\nproperly within the arbitration panel’s jurisdiction. The\ndistrict court agreed and dismissed for lack of quasi in rem\njurisdiction.\n\n While the appeal was pending, the Court of Appeal of\nParis confirmed the arbitration panel’s conclusion that the\ndefendant was subject to its jurisdiction. The Ninth Circuit\npanel held that plaintiff did not waive arguments based on\nthe French court’s decision. The panel held that the French\ncourt’s decision was entitled to recognition under the\nprinciples of international comity. As a result, the elements\nof quasi in rem jurisdiction were present. Plaintiff possessed\na valid judgment against the defendant, who owned property\nin Oregon. The panel therefore reversed the district court’s\norder and remanded for further proceedings.\n\n\n **\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f CERNER MIDDLE EAST LTD. V. ICAPITAL 3\n\n COUNSEL\n\nWarren E. Gluck (argued) and Sean C. Sheely, Holland &\nKnight LLP, New York, New York; David J. Elkanich and\nGarrett S. Garfield, Holland & Knight LLP, Portland,\nOregon; for Plaintiff-Appellant.\n\nGary I. Grenley (argued), Paul H. Trinchero, and Eryn\nKarpinski Hoerster, Garvey Schubert Barer, Portland,\nOregon, for Defendants-Appellees.\n\n\n OPINION\n\nCLIFTON, Circuit Judge:\n\n This appeal asks us to determine whether an arbitration\naward later confirmed by a court in France is enforceable\nagainst property in Oregon owned by a named respondent in\nthat arbitration who contends that the arbitration panel did not\nhave jurisdiction over him.\n\n Plaintiff-Appellant Cerner Middle East Limited filed this\naction in Oregon state court to enforce an arbitration award\nagainst property in that state owned by Defendants-Appellees\nAhmed Saeed Mohammed Al Badi Al Dhaheri1 and iCapital,\nLLC. Quasi in rem jurisdiction exists when a plaintiff seeks\nto enforce a judgment against a defendant’s in-state property.\n\n\n 1\n As sometimes happens with names translated from another\nlanguage, Dhaheri’s name has been spelled in various ways, including\nwithin briefs filed on his behalf and in the caption of this case. We use the\nspelling initially used in the first brief filed in this court on his behalf in\nthis case.\n\f4 CERNER MIDDLE EAST LTD. V. ICAPITAL\n\nGlencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain\nCo., 284 F.3d 1114, 1127 (9th Cir. 2002). Defendants\nremoved the case to federal district court, where they argued\nthat Cerner could not enforce the arbitration award against\nOregon property owned by Dhaheri until a court confirmed\nthe arbitration panel’s conclusion that Dhaheri was properly\nwithin the panel’s jurisdiction. They therefore maintained\nthat the award could not support the district court’s exercise\nof quasi in rem jurisdiction. This district court agreed and\ndismissed this action.\n\n While this appeal was pending, the Court of Appeal of\nParis, a court with jurisdiction over Dhaheri, confirmed the\narbitration panel’s conclusion that Dhaheri was subject to the\npanel’s jurisdiction. We hold that the French court’s decision\nis entitled to recognition under the principles of international\ncomity. As a result, the elements of quasi in rem jurisdiction\nare present. Cerner possesses a valid judgment against\nDhaheri, who owns property in Oregon. We therefore reverse\nthe district court’s order dismissing this case for lack of\npersonal jurisdiction and remand for further proceedings.\n\nI. Background\n\n This action is one of several disputes between Cerner, on\none side, and Dhaheri and entities he controls on the other. 2\n\n\n 2\n Another one of those disputes resulted in an appeal from a decision\nby the U.S. District Court for the Western District of Washington, argued\nto the same panel of this court on the same day. Although there is\nsubstantial overlap in the factual background, the issues in the two appeals\nare distinct and they are resolved in separate opinions. For the opinion in\nthat case, see Cerner Middle East Limited v. Belbadi Enterprises, LLC,\nNo. 17-35157, ___ F.3d ____ (9th Cir. 2019).\n\f CERNER MIDDLE EAST LTD. V. ICAPITAL 5\n\n Plaintiff Cerner Middle East Limited (identified in this\nopinion as “Cerner”) is a Cayman Islands corporation with its\nprincipal place of business in Kansas City, Missouri. It is a\nsubsidiary of Cerner Corporation, a medical services\ntechnology company based in Kansas City, whose revenue in\n2018 was excess of $5 billion and whose stock is listed on the\nNASDAQ exchange.\n\n Dhaheri, a businessman with substantial holdings, is a\ncitizen and domiciliary of the United Arab Emirates\n(“UAE”). iCapital, LLC is a UAE limited liability\ncorporation with its principal place of business in Abu Dhabi,\nUAE. Cerner alleges that Dhaheri owns and controls\niCapital, LLC. iCapital’s predecessor was iCapital S/E, a\nUAE sole proprietorship through which Dhaheri did business.\n\n In 2008, the United Arab Emirates Ministry of Health\nawarded iCapital S/E a contract to develop medical\ninformation software for use in the UAE. iCapital S/E and\nCerner signed a contract (the “Cerner Business Agreement”\nor “CBA”) under which Cerner would provide hardware,\nsoftware, and services for the UAE project. The CBA\nrequired the parties to submit any disputes to binding\narbitration under the rules of the International Chamber of\nCommerce (“ICC”), specified that the seat of arbitration shall\nbe in Paris, France, and stated that the language of an\narbitration shall be English. The contract also contained a\nchoice of law clause that stated that it “shall be governed by,\nconstrued, interpreted and enforced in accordance with the\nlaws of the State of Missouri[.]”\n\n Cerner filed a request for arbitration with the ICC in\nSeptember 2012. It contended that iCapital S/E had failed to\nmake payments due under the CBA. It also complained that\n\f6 CERNER MIDDLE EAST LTD. V. ICAPITAL\n\niCapital S/E, a sole proprietorship, had been reorganized into\niCapital, LLC, a limited liability company, without Cerner’s\nconsent, which Cerner alleged was contrary to the terms of\nthe CBA.\n\n That dispute appeared to have been settled three months\nlater. The settlement divided iCapital’s liability into two\nparts: the amount that iCapital owed Cerner for the work\nalready completed under the CBA (the “Overdue Amount”),\nand the amount that iCapital would owe Cerner for the future\nwork contemplated by the CBA (the “Future Payments”).\nThe liability of iCapital for the Overdue Amount was\naddressed in a Settlement and Payment Agreement\n(“Settlement Agreement”) signed by Cerner and iCapital,\nLLC. It set the amount owed to Cerner for past performance\nand waived claims for past acts or omissions by the other\nparty and its affiliates and their directors, officers, employees,\nagents, and representatives. The liability for the Future\nPayments was addressed in Amendment No. 5 to the CBA,\nalso signed by Cerner and iCapital, LLC. That Amendment\n“re-schedule[d] the Future Payments owed to Cerner” under\nthe original CBA.\n\n Amendment No. 5 also revised the language of the\noriginal CBA’s arbitration clause, retaining the elements\ndescribed above that required the parties to submit any\ndisputes to binding arbitration under the rules of the ICC to\nbe conducted in English in Paris. The Settlement Agreement\nadopted the arbitration clause set forth in Amendment No. 5\n\f CERNER MIDDLE EAST LTD. V. ICAPITAL 7\n\nto the CBA, and the choice of law clause set forth in the\noriginal CBA.3\n\n Unfortunately, the settlement did not bring a lasting\npeace. In August 2013, Cerner initiated a second request for\narbitration against iCapital, LLC and Dhaheri with the ICC,\ncontending, among other things, that iCapital had failed to\nmake payments called for by the Settlement Agreement.\niCapital responded to the notification by objecting to the\narbitration. Dhaheri declined to respond to correspondence\nfrom the arbitration administrator. The International Court of\nArbitration of the ICC concluded that the arbitration should\nproceed against both respondents and appointed a three-\nmember arbitral tribunal (“Tribunal”).\n\n The Tribunal issued its award in July 2015. It determined\nthat it had jurisdiction over both iCapital, LLC and Dhaheri\npersonally. It held that iCapital, LLC had agreed to submit to\narbitration by signing the Settlement Agreement and\nAmendment No. 5 to the CBA. The Tribunal also concluded\nthat it could exercise jurisdiction over Dhaheri on two\nseparate grounds. First, Dhaheri was personally liable, as a\nsole proprietor, for the obligations of iCapital S/E under the\noriginal CBA and had consented to be bound by the\narbitration clause in the original CBA. The Tribunal\nconcluded that he had not been released from his obligations\nas the “owner” of iCapital S/E, including the agreement to\narbitrate disputes that arose up to the execution of the\n\n\n 3\n To induce Cerner to enter the settlement, another entity owned and\ncontrolled by Dhaheri that was not previously involved in the transaction,\nBelbadi Enterprises, LLC entered into agreements to guarantee the\nobligations of iCapital (the “Guarantees”). Belbadi is a party to the other\nappeal presented to this panel, but is not otherwise involved in this appeal.\n\f8 CERNER MIDDLE EAST LTD. V. ICAPITAL\n\nSettlement Agreement, at which point Cerner agreed to\nrecognize the restructuring of iCapital S/E into iCapital, LLC.\nSecond, Dhaheri was the alter ego of iCapital, which had\nsigned a binding arbitration agreement. As to the merits of\nCerner’s claim, the Tribunal held that both iCapital, LLC and\nDhaheri were liable to Cerner for more than $62 million in\ndamages.\n\n After the Tribunal ruled in its favor, Cerner filed a series\nof actions in the United States that sought to enforce either\nthe Arbitration Award or the Guarantees. This is one of those\nactions.\n\n Cerner initiated this case by filing a verified complaint in\nOregon state court seeking to attach funds in an Oregon bank\naccount owned by Dhaheri. To establish jurisdiction, Cerner\nrelied on a quasi in rem theory. Quasi in rem jurisdiction\nexists when a plaintiff seeks to collect on an existing\njudgment by executing on the defendant’s in-state property.\nGlencore Grain, 284 F.3d at 1127.\n\n Defendants removed the case to federal court. They then\nfiled a motion to dismiss for lack of personal jurisdiction\nunder Federal Rule of Civil Procedure 12(b)(2). In that\nmotion, they maintained that the district court could not rely\non the quasi in rem theory because Cerner did not possess a\nvalid judgment against Dhaheri.4 Specifically, they\ncontended that the Tribunal’s award could not be enforced\nbecause the Tribunal lacked the authority to rule on the issue\nof whether Dhaheri was subject to arbitration. While\n\n\n 4\n While Defendants did not dispute the validity of the Tribunal’s\naward against iCapital, Cerner has not identified any Oregon property\nowned by iCapital.\n\f CERNER MIDDLE EAST LTD. V. ICAPITAL 9\n\nDefendants apparently agreed that a court could confirm the\nTribunal’s decision, they contended that to make that\ndetermination a court needed to have jurisdiction over\nDhaheri, which the district court in Oregon did not have. The\ndistrict court agreed and granted Defendants’ motion to\ndismiss.\n\n This appeal followed. In the initial briefing, Defendants\nrelied on the same arguments, that (1) the Tribunal could not\nindependently determine whether Dhaheri had agreed to\narbitrate, and (2) the district court could not confirm the\nTribunal’s decision because he was “entitled to have a court\nof competent jurisdiction determine whether he is bound by\nthe arbitration provision [in the SPA and CBA].”\n\n While this appeal was pending, on October 16, 2018, the\nCourt of Appeal of Paris (the “Paris Court”) affirmed a\nFrench trial court decision that confirmed the Arbitration\nAward. In reaching that conclusion, the Paris Court\nspecifically concluded that “it was rightly that the [Tribunal]\ndeclared [that it] had jurisdiction with respect to [Dhaheri].”5\n\n We asked the parties to submit supplemental briefs\naddressing the impact of the Paris Court’s decision on this\ncase. In their supplemental briefing, Defendants implicitly\nacknowledged the Paris Court as a court of competent\njurisdiction. They nevertheless continued to assert that the\nArbitration Award should not provide the basis for quasi in\nrem jurisdiction here.\n\n\n 5\n The decision of the Paris Court has been provided to us in its\noriginal French language form and also translated into English. We have\nrelied upon the latter. The parties have not disputed the authenticity of the\ndecision or the accuracy of the translation.\n\f10 CERNER MIDDLE EAST LTD. V. ICAPITAL\n\nII. Discussion\n\n “We review de novo a district court’s dismissal for lack\nof personal jurisdiction.” Ranza v. Nike, Inc., 793 F.3d 1059,\n1068 (9th Cir. 2015). “Where, as here, the defendant’s\nmotion is based on written materials rather than an\nevidentiary hearing, the plaintiff need only make a prima\nfacie showing of jurisdictional facts to withstand the motion\nto dismiss.” Id. (quotation marks omitted).\n\n Cerner contends that the district court possesses quasi in\nrem jurisdiction. The parties agree that so-called “type two\nquasi in rem” jurisdiction, see Restatement (First) of\nJudgments § 32 (1942), requires that (1) a court of competent\njurisdiction rendered a judgment against Dhaheri, and\n(2) Dhaheri owns property in the forum state. See Office\nDepot Inc. v. Zuccarini, 596 F.3d 696, 700 (9th Cir. 2010).\nIt does not appear disputed that Dhaheri owns property in\nOregon, specifically a bank account, so it is the first prong\nthat is at issue here, whether a judgment against Dhaheri has\nbeen rendered by a court of competent jurisdiction.\n\n The argument by Defendants that persuaded the district\ncourt was that the Tribunal’s award against Dhaheri was\nineffective because a court with jurisdiction over Dhaheri had\nnot determined that the Tribunal had jurisdiction over\nDhaheri.6 Although there is now a decision by the Paris\n\n\n\n\n 6\n Cerner argued to the contrary before the district court and to us, but\nwe do not find it necessary at this point to discuss those arguments.\n\f CERNER MIDDLE EAST LTD. V. ICAPITAL 11\n\nCourt that appears to satisfy that requirement,7 Defendants\nassert that we should not recognize that decision for two\nreasons: (1) Cerner has waived arguments based on the\nFrench decision, and (2) the French decision is not entitled to\nrecognition under the principles of international comity.\nNeither contention has persuaded us.\n\n A. Waiver of arguments based on the French decision\n\n Defendants first argue that Cerner cannot rely on the\ndecision of the Court of Appeal of Paris because Cerner did\nnot cite the French proceedings to the district court.\nAlthough the Paris Court did not issue its decision until after\nthe district court ruled, Defendants contend that Cerner could\nhave cited the French trial court judgment issued on May 23,\n2016. That decision confirmed that the Arbitration Award\nwas valid and enforceable.\n\n We conclude that Cerner did not waive its arguments\nbased on the Paris Court’s decision. It appears that under\nFrench law, trial court judgments are “stayed pending the\nappellate court decision.” Marine Travelift, 324 F. Supp. 3d\nat 1007. Defendants concede that the trial court judgment\nwas stayed on February 9, 2017, prior to the district court’s\ndecision. In addition, it does not appear that the French trial\ncourt decision spoke clearly to the relevant issue. The present\ndispute turns on whether a court has determined that the\n\n\n 7\n It appears that the decision of the Court of Appeals of Paris is\nconsidered final even if an appeal to a higher court in France is possible.\nSee Societe dAmenagement et de Gestion de lAbri Nautique v. Marine\nTravelift Inc., 324 F. Supp. 3d 1004, 1007–08 (E.D. Wis. 2018).\nDefendants did not challenge the finality of the Paris Court decision in\ntheir supplemental briefing.\n\f12 CERNER MIDDLE EAST LTD. V. ICAPITAL\n\nTribunal had jurisdiction over Dhaheri. According to\ntranslated excerpts8 of the French trial court decision, the trial\ncourt enforcement order did not discuss that issue. Instead,\nit simply stated that the Arbitration Award did “not contain\nany provision contrary to the law or to public order.” In\ncontrast, the Paris Court decision includes a detailed analysis\nexplaining the basis for its conclusion that Dhaheri was\nsubject to the jurisdiction of the Tribunal. Thus, the Paris\nCourt decision is uniquely relevant here.\n\n Cerner’s failure to cite the French trial court judgment to\nthe district court does not give us reason to disregard the later\ndecision of the Paris Court.\n\n B. Recognition of a foreign court decision\n\n Defendants also contend that the decision of the Paris\nCourt is not entitled to recognition. “The extent to which the\nUnited States, or any state, honors the judicial decrees of\nforeign nations is a matter of choice, governed by the comity\nof nations.” Asvesta v. Petroutsas, 580 F.3d 1000, 1010 (9th\nCir. 2009) (quotations omitted). “Comity is the recognition\nwhich one nation allows within its territory to the legislative,\nexecutive or judicial acts of another nation.” Id. at 1010–11\n(quotations omitted). “Extension of comity to a foreign\njudgment is neither a matter of absolute obligation, on the one\nhand, nor of mere courtesy and good will, upon the other.”\nId. at 1011 (quotations omitted).\n\n The considerations identified by the Supreme Court in\nHilton v. Guyot, 159 U.S. 113 (1895), provide “the guiding\n\n 8\n As Defendants have requested, we take judicial notice of the\nexcerpts of the French trial court decision they submitted.\n\f CERNER MIDDLE EAST LTD. V. ICAPITAL 13\n\nprinciples of comity.” Asvesta, 580 F.3d at 1011; see also\nJacobs v. Tristar Indus., Ltd., 701 P.2d 455, 457–58 (Or. Ct.\nApp. 1985). In Hilton, the Supreme Court held that foreign\ndecisions should be accorded deference unless an underlying\nissue renders the judgment suspect. For instance, we may\ndisregard a foreign judgment if it was not decided “‘under a\nsystem of jurisprudence likely to secure an impartial\nadministration of justice,’” or if it was procured by fraud.\nAsvesta, 580 F.3d at 1011 (quoting Hilton, 159 U.S.\nat 202–03).\n\n None of those conditions apply here. Defendants do not\nchallenge the administration of justice in France, either\ngenerally or in this particular case. As noted above, the\nparties themselves specified that Paris would be the location\nof any arbitration in both the original contract, the CBA, and\nin the revisions to that agreement, the Settlement Agreement\nand Amendment No. 5.\n\n Defendants instead argue in essence that the Paris Court\ndecision does not deserve deference because it was incorrect.\nUnder certain circumstances, we may examine the merits of\na foreign decision and conclude that it should not be\nrecognized. In Asvesta, for example, we were asked to decide\nwhether a Greek court decision was entitled to recognition.\nIt involved the Hague Convention on the Civil Aspects of\nInternational Child Abduction, “an international agreement\ngoverning the return of children removed, usually by one\nparent in order to gain a custody advantage over the other\nparent, from their ‘habitual residence.’” 580 F.3d\nat 1002–03. Because the Greek court decision did not\ninvolve the interpretation of Greek law, we examined the\nsubstance of the Greek court’s decision and held that “we\nmay properly decline to extend comity to [it] if it clearly\n\f14 CERNER MIDDLE EAST LTD. V. ICAPITAL\n\nmisinterprets the Hague Convention, contravenes the\nConvention’s fundamental premises or objectives, or fails to\nmeet a minimum standard of reasonableness.” Id. at 1014.\n\n Similarly, this case involves an international convention,\nthe Convention on the Recognition and Enforcement of\nForeign Arbitral Awards9 (the “Convention”) and does not\ninvolve the interpretation of French law. We may refuse to\nrecognize the Paris Court decision if it “clearly misinterprets\nthe [] Convention, contravenes the Convention’s fundamental\npremises or objectives, or fails to meet a minimum standard\nof reasonableness.” Id.\n\n Although Defendants contend that the Paris Court’s\ndecision conflicts with the Convention, that argument rests on\nthe premise that the decision failed to apply the law specified\nby the parties as controlling.10 That is Missouri law, which\nDefendants acknowledge includes U.S. federal law regarding\narbitrability under the Federal Arbitration Act (the “FAA”).\nAccording to Defendants, the Paris Court decision should not\nbe recognized primarily because it was based on “usual\npractices of international trade,” not U.S. law.\n\n As noted above, our review of the decision of the district\ncourt here is de novo, but it is important to recognize that our\nreview of the French court decision is not. We do not sit as\n\n 9\n The United States is a party to that multilateral treaty, sometimes\ncalled “the New York Convention.” Convention on the Recognition and\nEnforcement of Foreign Arbitral Awards, June 10, 1958, T.I.A.S. No.\n6997 (Dec. 29, 1970).\n 10\n Because we conclude that the Paris Court’s decision is entitled to\ncomity even if Missouri law is controlling, we do not need to decide\nwhether the Paris Court was in fact bound by Missouri law.\n\f CERNER MIDDLE EAST LTD. V. ICAPITAL 15\n\nan appellate court to review the Court of Appeal of Paris by\ndeciding whether U.S. law was misapplied.\n\n Indeed, the parties explicitly contracted for the resolution\nof disputes to be by arbitration conducted in Paris, even while\nproviding that their agreements should be governed by\nMissouri law, including federal law pertaining to arbitrations.\nDefendants have affirmatively argued that the court in\nOregon lacks authority to make a decision regarding the\njurisdiction of the Tribunal over Dhaheri because it does not\nhave personal jurisdiction over Dhaheri, a citizen and resident\nof the UAE. The same argument would appear to apply to\nany other court located in this country. It could hardly be a\nsurprise that the Arbitration Award in this case would wind\nup being reviewed by a French court, subject to review by a\ncourt of appeals in France, not likely to be experienced in\nMissouri or U.S. law. That was nearly inevitable based on\nthe agreements entered by the parties. Under these\ncircumstances, a foreign court would have to miss the mark\nby a very wide margin to fail to meet a minimum standard of\nreasonableness.\n\n C. The decisions in this case\n\n Using our customary terminology, the Paris Court in\neffect affirmed a decision by a French trial court that\nconfirmed the Arbitration Award entered by the Tribunal.\nThat Award explicitly explained the Tribunal’s determination\nthat Dhaheri was subject to its jurisdiction. We conclude that\nthe decision of the Paris Court deserves recognition.\n\n The Tribunal was mindful that there were different bodies\nof law that might apply to the question of jurisdiction. In the\nArbitration Award it specifically identified the possibility of\n\f16 CERNER MIDDLE EAST LTD. V. ICAPITAL\n\napplying Missouri law (the law of the contract), French law\n(the law of the place of arbitration), UAE law (the law where\niCapital, LLC was incorporated and Dhaheri resided), and\ntransnational principles. Its subsequent discussion on the\nsubject cited to several Missouri and federal court decisions,\nand that appeared to be what the Tribunal primarily relied\nupon. The Tribunal offered two separate reasons for its\nconclusion that Dhaheri was subject to its jurisdiction.\n\n First, the Tribunal reasoned that Dhaheri was the sole\nproprietor of iCapital S/E. Citing UAE law, the law that\ndirectly governed the responsibilities of a UAE sole\nproprietorship, it observed that Dhaheri was “personally\nliable for all of iCapital S/E’s obligations.” iCapital S/E\nsigned the original CBA. The Tribunal therefore held that\nbecause iCapital S/E did not have a legal personality\nindependent of Dhaheri, Dhaheri was also bound by the\narbitration clause in the original CBA. Although the Tribunal\nrecognized that Cerner had waived any claims against\niCapital S/E arising out of the original CBA by signing the\nSettlement Agreement, it concluded that the waiver did not\nextend to iCapital S/E’s owner, Dhaheri. The Arbitration\nAward cited testimony by one witness that the parties\nunderstood as much when they entered into the Settlement\nAgreement. It noted as well that Dhaheri did not come within\nthe ambit of the waiver contained in the Settlement\nAgreement as he was not personally a party to that\nagreement.\n\n Second, the Tribunal held that Dhaheri could be bound by\nthe arbitration clauses in the Settlement Agreement and\nAmendment No. 5 to the CBA as iCapital, LLC’s alter ego.\nIt explained its finding that all three elements of alter ego\nliability under Missouri law were present. Dhaheri’s\n\f CERNER MIDDLE EAST LTD. V. ICAPITAL 17\n\ninvolvement in the affairs of iCapital demonstrated that\niCapital had no separate mind, will, or existence of its own.\nDhaheri had used his control over iCapital to permit iCapital\nto violate a positive legal duty by causing iCapital to breach\nthe Settlement Agreement and CBA. The violation of that\nlegal duty caused Cerner’s injuries. The Tribunal concluded\nthat Dhaheri was subject to its jurisdiction under either\ntheory.\n\n In its opinion, the Paris Court expressly discussed the\nquestion of whether the Tribunal had jurisdiction over\nDhaheri. It cited to the discussion of the Tribunal in support\nof its conclusion on both grounds.\n\n It then made the reference to “the usual practices of\ninternational trade” that appears to form the basis of\nDefendants’ current argument: “Considering that, according\nto the usual practices of international trade, the arbitration\nclause inserted in an international contract has its own\nspecific validity and effectiveness that require its application\nto be extended to the parties directly involved in negotiating,\nentering into, performing and/or terminating the contract.”\nThe court concluded that because this action arose out of the\ncontract Dhaheri signed as the sole proprietor of iCapital S/E,\nDhaheri had necessarily participated in both negotiating and\nentering into the Settlement Agreement and Amendment No.\n5 to the CBA.\n\n The Paris Court thus held that the Tribunal correctly\ndetermined that Dhaheri had agreed to arbitrate the claims at\nissue. As it stated in the translated decision: “it was rightly\nthat the Arbitrators declared they had jurisdiction with respect\nto him.”\n\f18 CERNER MIDDLE EAST LTD. V. ICAPITAL\n\n Defendants challenge the Paris Court decision as not\nentitled to comity because it incorrectly relied on the “usual\npractices of international trade.” According to Defendants,\nunder the choice of law clause in the CBA, the Court of\nAppeal of Paris should have applied Missouri and U.S. law.\nThey therefore maintain that the court of appeal erred by\nrelying on the principle that an arbitration clause can bind\nthose involved in negotiating and entering into a contract.\n\n The reference in the Paris Court decision to “usual\npractices of international trade” does not mean that was all\nthat the Paris Court considered. To the contrary, its decision\ncontained express references to specific paragraphs in the\nArbitration Award in which the Tribunal discussed and relied\nupon principles of Missouri law. That the French court may\nnot have separately discussed those legal principles in its\ndecision does not mean that it was unaware of those\nprinciples or rejected them by basing its own decision on a\ndifferent body of law. The Paris Court decision cannot be\ndisregarded because it did not repeat the Tribunal’s\ndiscussion regarding the law to be applied. Nor have\nDefendants demonstrated that the reference by the Paris Court\nto the “usual practices of international trade” was in such\nconflict with Missouri or U.S. law that we can conclude that\nit failed to meet a minimum standard of reasonableness.\n\n More broadly, Defendants misapprehend the focus of our\nanalysis. In Asvesta, we recognized that a foreign decision\nmay be entitled to comity even if we disagree with its\nreasoning. 580 F.3d at 1012, 1021. We will extend comity\nto a foreign decision unless the ultimate result fails to meet a\nminimum standard of reasonableness. See id.\n\f CERNER MIDDLE EAST LTD. V. ICAPITAL 19\n\n It appears to us that the conclusion of the Paris Court that\nDhaheri was properly bound by the arbitration clauses in the\nvarious agreements was far from unreasonable under\nMissouri law. The issue of “arbitrability” is one as to which\nfederal arbitrability law is controlling. Mitsubishi Motors\nCorp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626\n(1985) (the “federal substantive law of arbitrability” applies\nto “any arbitration agreement within the coverage of the\n[FAA],” including cases falling under the Convention); see\nalso State ex rel. Pinkerton v. Fahnestock, 531 S.W.3d 36, 49\nn.8 (Mo. 2017) (en banc) (applying federal arbitrability law\nin FAA action).\n\n Defendants argue that the question of whether the parties\nagreed to arbitrate here was to be decided by the court, not\nthe arbitrator. Assuming that there was such a requirement\nhere, it was satisfied. The court decision can come after the\narbitration has been conducted, when a court confirms the\narbitrator’s award, as it did here. See generally First Options\nof Chicago, Inc. v. Kaplan, 514 U.S. 938 940–41 (1995)\n(considering challenge to arbitrability raised in confirmation\nproceedings); Carpenters 46 N. California Ctys. Conference\nBd. v. Zcon Builders, 96 F.3d 410, 416 (9th Cir. 1996)\n(directing district court to review arbitrability in confirmation\nproceedings).\n\n Similarly, as to substance, it does not appear to us that the\nconclusion of the Paris Court failed to meet a minimum\nstandard of reasonableness. “General contract and agency\nprinciples apply in determining the enforcement of an\narbitration agreement by or against nonsignatories.” Mundi\nv. Union Sec. Life Ins. Co., 555 F.3d 1042, 1045 (9th Cir.\n2009). One of those principles is “veil-piercing/alter ego.”\nId.; accord Cent. Tr. Bank v. Graves, 495 S.W.3d 797, 803\n\f20 CERNER MIDDLE EAST LTD. V. ICAPITAL\n\n(Mo. Ct. App. 2016). The French court was not well off the\nmark in concluding the Tribunal could have reasonably\nexercised jurisdiction over Dhaheri because iCapital, LLC\nsigned a valid arbitration agreement and Dhaheri was\niCapital’s alter ego.11\n\n Under Missouri law,12 the corporate veil may be pierced\nand a court may conclude that an individual shareholder is the\ncorporation’s alter ego if (1) the shareholder exerted control\nover the corporation, which had “no separate mind, will or\nexistence of its own,” (2) that control was “used by the\ncorporation to commit fraud or wrong, to perpetrate the\nviolation of statutory or other positive legal duty, or dishonest\nand unjust act in contravention of [the] plaintiff’s legal\nrights,” and (3) “[t]he control and breach of duty . . .\nproximately cause[d] the injury . . . complained of.” Doe\n1631 v. Quest Diagnostics, Inc., 395 S.W.3d 8, 18 (Mo. 2013)\n(en banc) (emphases omitted); accord 66, Inc. v. Crestwood\n\n\n 11\n In different circumstances, we held in Yang v. Majestic Blue\nFisheries, LLC that a party which did not itself sign an arbitration\nagreement could not compel another party which had signed an agreement\nwith another party to arbitrate in cases governed by the Convention.\n876 F.3d 996, 998–1001 (9th Cir. 2017). That case can arguably be\ndistinguished on the facts. More importantly, other circuits have\ndisagreed on this issue. See, e.g., Int’l Paper Co. v. Schwabedissen\nMaschinen & Anlagen GMBH, 206 F.3d 411, 418 n.7 (4th Cir. 2000)\n(“[T]he estoppel doctrine also applies to nonsignatories to arbitration\nagreements governed by the Convention.”). In light of that circuit split,\nwe cannot conclude that it would have been unreasonable for the Tribunal\nor the Paris Court to rely on an alter ego theory.\n 12\n State law governs this issue. See First Options, 514 U.S. at 944\n(“When deciding whether the parties agreed to arbitrate a certain matter\n. . . courts generally . . . should apply ordinary state-law principles that\ngovern the formation of contracts[.]”).\n\f CERNER MIDDLE EAST LTD. V. ICAPITAL 21\n\nCommons Redevelopment Corp., 998 S.W.2d 32, 40 (Mo.\n1999) (en banc). Based on Cerner’s complaint, all three\nfactors are met here. As a factual matter, Defendants have\nnot established anything erroneous in the Tribunal’s findings\nto that effect.\n\n Numerous facts demonstrated Dhaheri’s control over\niCapital, LLC, as the Tribunal found. Dhaheri held 99% of\niCapital’s shares, was the “sole financial and operational\ndecision-maker for iCapital,” and “call[ed] the shots” for\niCapital. In addition, Dhaheri was “a source, if not the main\nsource” of iCapital’s funds. Indeed, he referred to iCapital’s\ndebts as his own, and he informed Cerner that iCapital would\nmake the payments called for by the CBA when he personally\nhad the funds. That was enough under Missouri law to\nestablish that Dhaheri controlled iCapital. See State ex rel.\nFamily Support Div. v. Steak’m Take’m LLC, 524 S.W.3d\n584, 593 (Mo. Ct. App. 2017) (control established because\n100% shareholder “had complete control over both the\nfinances and management of [the corporation] and complete\nauthority to make all decisions”); Mobius Mgmt. Sys., Inc. v.\nW. Physician Search, L.L.C., 175 S.W.3d 186, 188 (Mo. Ct.\nApp. 2005) (control established because 80% shareholder\nmade all pertinent corporate decisions).\n\n The Tribunal concluded that Dhaheri used the corporate\nform to violate his legal obligations under the CBA and SPA.\nUnder Missouri law, a plaintiff can satisfy this element of\nthe veil piercing test by showing “actual fraud” or\n“undercapitalization.” Crestwood Commons, 998 S.W.2d\nat 41. Dhaheri knew how much money iCapital owed Cerner\nand promised that the necessary funds would be available, but\nDhaheri failed to provide iCapital with that funding. As the\nTribunal recognized, “it is now obvious that [iCapital] did not\n\f22 CERNER MIDDLE EAST LTD. V. ICAPITAL\n\nhave sufficient funds for those payments.” Moreover, the\nTribunal found that Dhaheri transformed iCapital into a\nlimited liability company for the purpose of evading his\ncontractual obligations under the CBA. Those facts\nsupported piercing the corporate veil under Missouri law. See\nMobius, 175 S.W.3d at 189 (second element established\nbecause controlling shareholder “admitted that, when he\nagreed to and signed [a consent judgment], he knew [the\ncorporation] was unable to pay it”); see also Crestwood\nCommons, 998 S.W.2d at 41 (second element established\nbecause “the uncapitalized shell corporation was used to\navoid debts arising out of the condemnation proceeding”).\n\n Finally, the third element of Missouri’s veil piercing test,\nthat Cerner suffered injury as a result, was obviously met.\nWhen Dhaheri failed to ensure that iCapital, LLC was able to\nmake the payments that were due, Cerner suffered the injury\nunderlying this action. Dhaheri’s actions satisfy Missouri’s\ncausation standard. See Mobius, 175 S.W.3d at 189.\n\n The decision of the Paris Court reasonably confirmed the\nTribunal’s conclusion that Dhaheri was iCapital, LLC’s alter\nego. On that basis, it could have determined that Dhaheri was\nbound by the arbitration clauses in the SPA and Amendment\nNo. 5 to the CBA.13 We conclude that the Paris Court’s\nconclusion that the Tribunal had jurisdiction did not fail to\nmeet a minimum standard of reasonableness. That decision\ndeserves recognition under the principles of international\ncomity.\n\n\n\n 13\n As it is unnecessary, we do not discuss the other ground relied upon\nby the Tribunal and confirmed by the Paris Court, Dhaheri’s personal\nresponsibility as the sole proprietor of iCapital S/E.\n\f CERNER MIDDLE EAST LTD. V. ICAPITAL 23\n\nIII. Conclusion\n\n In sum, we hold that a court of competent jurisdiction has\ndetermined that Dhaheri was properly within the jurisdiction\nof the arbitration. Because the Arbitration Award is\nenforceable, Cerner has established both elements of quasi in\nrem jurisdiction with respect to Dhaheri: Cerner possesses a\nvalid judgment against Dhaheri, and Dhaheri owns property\nthat is located in Oregon. Based on the Paris Court decision\nissued subsequent to the district court’s order, we reverse the\ndistrict court’s order dismissing this case for lack of personal\njurisdiction and remand for further proceedings.14\n\n REVERSED and REMANDED for further\nproceedings.\n\n\n\n\n 14\n As it does not appear that iCapital, LLC owns any property in\nOregon, its status in the litigation at this point is unclear. That has not\nbeen a topic of serious discussion on appeal. If they are interested, the\nparties may address that question on remand.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Cerner Middle East Limited v. Icapital, LLC\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-23\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\n CERNER MIDDLE EAST LIMITED, a No. 17-35514\\n Cayman Islands Exempted\\n Company, D.C. No.\\n Plaintiff-Appellant, 3:16-cv-01631-\\n YY\\n v.\\n\\n ICAPITAL, LLC, a U.A.E. Limited OPINION\\n Liability Company; AHMED SAEED\\n MAHOUD AL-BADI AL-DAHARI,\\n Defendants-Appellees.\\n\\n\\n Appeal from the United States District Court\\n for the District of Oregon\\n Marco A. Hernandez, District Judge, Presiding\\n\\n Argued and Submitted October 12, 2018\\n Portland, Oregon\\n\\n Filed September 23, 2019\\n\\n Before: Richard R. Clifton and Consuelo M. Callahan,\\n Circuit Judges, and Roger T. Benitez,* District Judge.\\n\\n Opinion by Judge Clifton\\n\\n *\\n The Honorable Roger T. Benitez, United States District Judge for\\nthe Southern District of California, sitting by designation.\\n\\f2 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\n SUMMARY**\\n\\n\\n Quasi in Rem Jurisdiction\\n\\n The panel reversed the district court’s dismissal, for lack\\nof personal jurisdiction, of an action seeking enforcement of\\na foreign arbitration award against property in Oregon owned\\nby defendants.\\n\\n Quasi in rem jurisdiction exists when a plaintiff seeks to\\nenforce a judgment against a defendant’s in-state property.\\nDefendants argued that plaintiff could not enforce the\\narbitration award against the property until a court confirmed\\nthe arbitration panel’s conclusion that a defendant was\\nproperly within the arbitration panel’s jurisdiction. The\\ndistrict court agreed and dismissed for lack of quasi in rem\\njurisdiction.\\n\\n While the appeal was pending, the Court of Appeal of\\nParis confirmed the arbitration panel’s conclusion that the\\ndefendant was subject to its jurisdiction. The Ninth Circuit\\npanel held that plaintiff did not waive arguments based on\\nthe French court’s decision. The panel held that the French\\ncourt’s decision was entitled to recognition under the\\nprinciples of international comity. As a result, the elements\\nof quasi in rem jurisdiction were present. Plaintiff possessed\\na valid judgment against the defendant, who owned property\\nin Oregon. The panel therefore reversed the district court’s\\norder and remanded for further proceedings.\\n\\n\\n **\\n This summary constitutes no part of the opinion of the court. It has\\nbeen prepared by court staff for the convenience of the reader.\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 3\\n\\n COUNSEL\\n\\nWarren E. Gluck (argued) and Sean C. Sheely, Holland &\\nKnight LLP, New York, New York; David J. Elkanich and\\nGarrett S. Garfield, Holland & Knight LLP, Portland,\\nOregon; for Plaintiff-Appellant.\\n\\nGary I. Grenley (argued), Paul H. Trinchero, and Eryn\\nKarpinski Hoerster, Garvey Schubert Barer, Portland,\\nOregon, for Defendants-Appellees.\\n\\n\\n OPINION\\n\\nCLIFTON, Circuit Judge:\\n\\n This appeal asks us to determine whether an arbitration\\naward later confirmed by a court in France is enforceable\\nagainst property in Oregon owned by a named respondent in\\nthat arbitration who contends that the arbitration panel did not\\nhave jurisdiction over him.\\n\\n Plaintiff-Appellant Cerner Middle East Limited filed this\\naction in Oregon state court to enforce an arbitration award\\nagainst property in that state owned by Defendants-Appellees\\nAhmed Saeed Mohammed Al Badi Al Dhaheri1 and iCapital,\\nLLC. Quasi in rem jurisdiction exists when a plaintiff seeks\\nto enforce a judgment against a defendant’s in-state property.\\n\\n\\n 1\\n As sometimes happens with names translated from another\\nlanguage, Dhaheri’s name has been spelled in various ways, including\\nwithin briefs filed on his behalf and in the caption of this case. We use the\\nspelling initially used in the first brief filed in this court on his behalf in\\nthis case.\\n\\f4 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\nGlencore Grain Rotterdam B.V. v. Shivnath Rai Harnarain\\nCo., 284 F.3d 1114, 1127 (9th Cir. 2002). Defendants\\nremoved the case to federal district court, where they argued\\nthat Cerner could not enforce the arbitration award against\\nOregon property owned by Dhaheri until a court confirmed\\nthe arbitration panel’s conclusion that Dhaheri was properly\\nwithin the panel’s jurisdiction. They therefore maintained\\nthat the award could not support the district court’s exercise\\nof quasi in rem jurisdiction. This district court agreed and\\ndismissed this action.\\n\\n While this appeal was pending, the Court of Appeal of\\nParis, a court with jurisdiction over Dhaheri, confirmed the\\narbitration panel’s conclusion that Dhaheri was subject to the\\npanel’s jurisdiction. We hold that the French court’s decision\\nis entitled to recognition under the principles of international\\ncomity. As a result, the elements of quasi in rem jurisdiction\\nare present. Cerner possesses a valid judgment against\\nDhaheri, who owns property in Oregon. We therefore reverse\\nthe district court’s order dismissing this case for lack of\\npersonal jurisdiction and remand for further proceedings.\\n\\nI. Background\\n\\n This action is one of several disputes between Cerner, on\\none side, and Dhaheri and entities he controls on the other. 2\\n\\n\\n 2\\n Another one of those disputes resulted in an appeal from a decision\\nby the U.S. District Court for the Western District of Washington, argued\\nto the same panel of this court on the same day. Although there is\\nsubstantial overlap in the factual background, the issues in the two appeals\\nare distinct and they are resolved in separate opinions. For the opinion in\\nthat case, see Cerner Middle East Limited v. Belbadi Enterprises, LLC,\\nNo. 17-35157, ___ F.3d ____ (9th Cir. 2019).\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 5\\n\\n Plaintiff Cerner Middle East Limited (identified in this\\nopinion as “Cerner”) is a Cayman Islands corporation with its\\nprincipal place of business in Kansas City, Missouri. It is a\\nsubsidiary of Cerner Corporation, a medical services\\ntechnology company based in Kansas City, whose revenue in\\n2018 was excess of $5 billion and whose stock is listed on the\\nNASDAQ exchange.\\n\\n Dhaheri, a businessman with substantial holdings, is a\\ncitizen and domiciliary of the United Arab Emirates\\n(“UAE”). iCapital, LLC is a UAE limited liability\\ncorporation with its principal place of business in Abu Dhabi,\\nUAE. Cerner alleges that Dhaheri owns and controls\\niCapital, LLC. iCapital’s predecessor was iCapital S/E, a\\nUAE sole proprietorship through which Dhaheri did business.\\n\\n In 2008, the United Arab Emirates Ministry of Health\\nawarded iCapital S/E a contract to develop medical\\ninformation software for use in the UAE. iCapital S/E and\\nCerner signed a contract (the “Cerner Business Agreement”\\nor “CBA”) under which Cerner would provide hardware,\\nsoftware, and services for the UAE project. The CBA\\nrequired the parties to submit any disputes to binding\\narbitration under the rules of the International Chamber of\\nCommerce (“ICC”), specified that the seat of arbitration shall\\nbe in Paris, France, and stated that the language of an\\narbitration shall be English. The contract also contained a\\nchoice of law clause that stated that it “shall be governed by,\\nconstrued, interpreted and enforced in accordance with the\\nlaws of the State of Missouri[.]”\\n\\n Cerner filed a request for arbitration with the ICC in\\nSeptember 2012. It contended that iCapital S/E had failed to\\nmake payments due under the CBA. It also complained that\\n\\f6 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\niCapital S/E, a sole proprietorship, had been reorganized into\\niCapital, LLC, a limited liability company, without Cerner’s\\nconsent, which Cerner alleged was contrary to the terms of\\nthe CBA.\\n\\n That dispute appeared to have been settled three months\\nlater. The settlement divided iCapital’s liability into two\\nparts: the amount that iCapital owed Cerner for the work\\nalready completed under the CBA (the “Overdue Amount”),\\nand the amount that iCapital would owe Cerner for the future\\nwork contemplated by the CBA (the “Future Payments”).\\nThe liability of iCapital for the Overdue Amount was\\naddressed in a Settlement and Payment Agreement\\n(“Settlement Agreement”) signed by Cerner and iCapital,\\nLLC. It set the amount owed to Cerner for past performance\\nand waived claims for past acts or omissions by the other\\nparty and its affiliates and their directors, officers, employees,\\nagents, and representatives. The liability for the Future\\nPayments was addressed in Amendment No. 5 to the CBA,\\nalso signed by Cerner and iCapital, LLC. That Amendment\\n“re-schedule[d] the Future Payments owed to Cerner” under\\nthe original CBA.\\n\\n Amendment No. 5 also revised the language of the\\noriginal CBA’s arbitration clause, retaining the elements\\ndescribed above that required the parties to submit any\\ndisputes to binding arbitration under the rules of the ICC to\\nbe conducted in English in Paris. The Settlement Agreement\\nadopted the arbitration clause set forth in Amendment No. 5\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 7\\n\\nto the CBA, and the choice of law clause set forth in the\\noriginal CBA.3\\n\\n Unfortunately, the settlement did not bring a lasting\\npeace. In August 2013, Cerner initiated a second request for\\narbitration against iCapital, LLC and Dhaheri with the ICC,\\ncontending, among other things, that iCapital had failed to\\nmake payments called for by the Settlement Agreement.\\niCapital responded to the notification by objecting to the\\narbitration. Dhaheri declined to respond to correspondence\\nfrom the arbitration administrator. The International Court of\\nArbitration of the ICC concluded that the arbitration should\\nproceed against both respondents and appointed a three-\\nmember arbitral tribunal (“Tribunal”).\\n\\n The Tribunal issued its award in July 2015. It determined\\nthat it had jurisdiction over both iCapital, LLC and Dhaheri\\npersonally. It held that iCapital, LLC had agreed to submit to\\narbitration by signing the Settlement Agreement and\\nAmendment No. 5 to the CBA. The Tribunal also concluded\\nthat it could exercise jurisdiction over Dhaheri on two\\nseparate grounds. First, Dhaheri was personally liable, as a\\nsole proprietor, for the obligations of iCapital S/E under the\\noriginal CBA and had consented to be bound by the\\narbitration clause in the original CBA. The Tribunal\\nconcluded that he had not been released from his obligations\\nas the “owner” of iCapital S/E, including the agreement to\\narbitrate disputes that arose up to the execution of the\\n\\n\\n 3\\n To induce Cerner to enter the settlement, another entity owned and\\ncontrolled by Dhaheri that was not previously involved in the transaction,\\nBelbadi Enterprises, LLC entered into agreements to guarantee the\\nobligations of iCapital (the “Guarantees”). Belbadi is a party to the other\\nappeal presented to this panel, but is not otherwise involved in this appeal.\\n\\f8 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\nSettlement Agreement, at which point Cerner agreed to\\nrecognize the restructuring of iCapital S/E into iCapital, LLC.\\nSecond, Dhaheri was the alter ego of iCapital, which had\\nsigned a binding arbitration agreement. As to the merits of\\nCerner’s claim, the Tribunal held that both iCapital, LLC and\\nDhaheri were liable to Cerner for more than $62 million in\\ndamages.\\n\\n After the Tribunal ruled in its favor, Cerner filed a series\\nof actions in the United States that sought to enforce either\\nthe Arbitration Award or the Guarantees. This is one of those\\nactions.\\n\\n Cerner initiated this case by filing a verified complaint in\\nOregon state court seeking to attach funds in an Oregon bank\\naccount owned by Dhaheri. To establish jurisdiction, Cerner\\nrelied on a quasi in rem theory. Quasi in rem jurisdiction\\nexists when a plaintiff seeks to collect on an existing\\njudgment by executing on the defendant’s in-state property.\\nGlencore Grain, 284 F.3d at 1127.\\n\\n Defendants removed the case to federal court. They then\\nfiled a motion to dismiss for lack of personal jurisdiction\\nunder Federal Rule of Civil Procedure 12(b)(2). In that\\nmotion, they maintained that the district court could not rely\\non the quasi in rem theory because Cerner did not possess a\\nvalid judgment against Dhaheri.4 Specifically, they\\ncontended that the Tribunal’s award could not be enforced\\nbecause the Tribunal lacked the authority to rule on the issue\\nof whether Dhaheri was subject to arbitration. While\\n\\n\\n 4\\n While Defendants did not dispute the validity of the Tribunal’s\\naward against iCapital, Cerner has not identified any Oregon property\\nowned by iCapital.\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 9\\n\\nDefendants apparently agreed that a court could confirm the\\nTribunal’s decision, they contended that to make that\\ndetermination a court needed to have jurisdiction over\\nDhaheri, which the district court in Oregon did not have. The\\ndistrict court agreed and granted Defendants’ motion to\\ndismiss.\\n\\n This appeal followed. In the initial briefing, Defendants\\nrelied on the same arguments, that (1) the Tribunal could not\\nindependently determine whether Dhaheri had agreed to\\narbitrate, and (2) the district court could not confirm the\\nTribunal’s decision because he was “entitled to have a court\\nof competent jurisdiction determine whether he is bound by\\nthe arbitration provision [in the SPA and CBA].”\\n\\n While this appeal was pending, on October 16, 2018, the\\nCourt of Appeal of Paris (the “Paris Court”) affirmed a\\nFrench trial court decision that confirmed the Arbitration\\nAward. In reaching that conclusion, the Paris Court\\nspecifically concluded that “it was rightly that the [Tribunal]\\ndeclared [that it] had jurisdiction with respect to [Dhaheri].”5\\n\\n We asked the parties to submit supplemental briefs\\naddressing the impact of the Paris Court’s decision on this\\ncase. In their supplemental briefing, Defendants implicitly\\nacknowledged the Paris Court as a court of competent\\njurisdiction. They nevertheless continued to assert that the\\nArbitration Award should not provide the basis for quasi in\\nrem jurisdiction here.\\n\\n\\n 5\\n The decision of the Paris Court has been provided to us in its\\noriginal French language form and also translated into English. We have\\nrelied upon the latter. The parties have not disputed the authenticity of the\\ndecision or the accuracy of the translation.\\n\\f10 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\nII. Discussion\\n\\n “We review de novo a district court’s dismissal for lack\\nof personal jurisdiction.” Ranza v. Nike, Inc., 793 F.3d 1059,\\n1068 (9th Cir. 2015). “Where, as here, the defendant’s\\nmotion is based on written materials rather than an\\nevidentiary hearing, the plaintiff need only make a prima\\nfacie showing of jurisdictional facts to withstand the motion\\nto dismiss.” Id. (quotation marks omitted).\\n\\n Cerner contends that the district court possesses quasi in\\nrem jurisdiction. The parties agree that so-called “type two\\nquasi in rem” jurisdiction, see Restatement (First) of\\nJudgments § 32 (1942), requires that (1) a court of competent\\njurisdiction rendered a judgment against Dhaheri, and\\n(2) Dhaheri owns property in the forum state. See Office\\nDepot Inc. v. Zuccarini, 596 F.3d 696, 700 (9th Cir. 2010).\\nIt does not appear disputed that Dhaheri owns property in\\nOregon, specifically a bank account, so it is the first prong\\nthat is at issue here, whether a judgment against Dhaheri has\\nbeen rendered by a court of competent jurisdiction.\\n\\n The argument by Defendants that persuaded the district\\ncourt was that the Tribunal’s award against Dhaheri was\\nineffective because a court with jurisdiction over Dhaheri had\\nnot determined that the Tribunal had jurisdiction over\\nDhaheri.6 Although there is now a decision by the Paris\\n\\n\\n\\n\\n 6\\n Cerner argued to the contrary before the district court and to us, but\\nwe do not find it necessary at this point to discuss those arguments.\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 11\\n\\nCourt that appears to satisfy that requirement,7 Defendants\\nassert that we should not recognize that decision for two\\nreasons: (1) Cerner has waived arguments based on the\\nFrench decision, and (2) the French decision is not entitled to\\nrecognition under the principles of international comity.\\nNeither contention has persuaded us.\\n\\n A. Waiver of arguments based on the French decision\\n\\n Defendants first argue that Cerner cannot rely on the\\ndecision of the Court of Appeal of Paris because Cerner did\\nnot cite the French proceedings to the district court.\\nAlthough the Paris Court did not issue its decision until after\\nthe district court ruled, Defendants contend that Cerner could\\nhave cited the French trial court judgment issued on May 23,\\n2016. That decision confirmed that the Arbitration Award\\nwas valid and enforceable.\\n\\n We conclude that Cerner did not waive its arguments\\nbased on the Paris Court’s decision. It appears that under\\nFrench law, trial court judgments are “stayed pending the\\nappellate court decision.” Marine Travelift, 324 F. Supp. 3d\\nat 1007. Defendants concede that the trial court judgment\\nwas stayed on February 9, 2017, prior to the district court’s\\ndecision. In addition, it does not appear that the French trial\\ncourt decision spoke clearly to the relevant issue. The present\\ndispute turns on whether a court has determined that the\\n\\n\\n 7\\n It appears that the decision of the Court of Appeals of Paris is\\nconsidered final even if an appeal to a higher court in France is possible.\\nSee Societe dAmenagement et de Gestion de lAbri Nautique v. Marine\\nTravelift Inc., 324 F. Supp. 3d 1004, 1007–08 (E.D. Wis. 2018).\\nDefendants did not challenge the finality of the Paris Court decision in\\ntheir supplemental briefing.\\n\\f12 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\nTribunal had jurisdiction over Dhaheri. According to\\ntranslated excerpts8 of the French trial court decision, the trial\\ncourt enforcement order did not discuss that issue. Instead,\\nit simply stated that the Arbitration Award did “not contain\\nany provision contrary to the law or to public order.” In\\ncontrast, the Paris Court decision includes a detailed analysis\\nexplaining the basis for its conclusion that Dhaheri was\\nsubject to the jurisdiction of the Tribunal. Thus, the Paris\\nCourt decision is uniquely relevant here.\\n\\n Cerner’s failure to cite the French trial court judgment to\\nthe district court does not give us reason to disregard the later\\ndecision of the Paris Court.\\n\\n B. Recognition of a foreign court decision\\n\\n Defendants also contend that the decision of the Paris\\nCourt is not entitled to recognition. “The extent to which the\\nUnited States, or any state, honors the judicial decrees of\\nforeign nations is a matter of choice, governed by the comity\\nof nations.” Asvesta v. Petroutsas, 580 F.3d 1000, 1010 (9th\\nCir. 2009) (quotations omitted). “Comity is the recognition\\nwhich one nation allows within its territory to the legislative,\\nexecutive or judicial acts of another nation.” Id. at 1010–11\\n(quotations omitted). “Extension of comity to a foreign\\njudgment is neither a matter of absolute obligation, on the one\\nhand, nor of mere courtesy and good will, upon the other.”\\nId. at 1011 (quotations omitted).\\n\\n The considerations identified by the Supreme Court in\\nHilton v. Guyot, 159 U.S. 113 (1895), provide “the guiding\\n\\n 8\\n As Defendants have requested, we take judicial notice of the\\nexcerpts of the French trial court decision they submitted.\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 13\\n\\nprinciples of comity.” Asvesta, 580 F.3d at 1011; see also\\nJacobs v. Tristar Indus., Ltd., 701 P.2d 455, 457–58 (Or. Ct.\\nApp. 1985). In Hilton, the Supreme Court held that foreign\\ndecisions should be accorded deference unless an underlying\\nissue renders the judgment suspect. For instance, we may\\ndisregard a foreign judgment if it was not decided “‘under a\\nsystem of jurisprudence likely to secure an impartial\\nadministration of justice,’” or if it was procured by fraud.\\nAsvesta, 580 F.3d at 1011 (quoting Hilton, 159 U.S.\\nat 202–03).\\n\\n None of those conditions apply here. Defendants do not\\nchallenge the administration of justice in France, either\\ngenerally or in this particular case. As noted above, the\\nparties themselves specified that Paris would be the location\\nof any arbitration in both the original contract, the CBA, and\\nin the revisions to that agreement, the Settlement Agreement\\nand Amendment No. 5.\\n\\n Defendants instead argue in essence that the Paris Court\\ndecision does not deserve deference because it was incorrect.\\nUnder certain circumstances, we may examine the merits of\\na foreign decision and conclude that it should not be\\nrecognized. In Asvesta, for example, we were asked to decide\\nwhether a Greek court decision was entitled to recognition.\\nIt involved the Hague Convention on the Civil Aspects of\\nInternational Child Abduction, “an international agreement\\ngoverning the return of children removed, usually by one\\nparent in order to gain a custody advantage over the other\\nparent, from their ‘habitual residence.’” 580 F.3d\\nat 1002–03. Because the Greek court decision did not\\ninvolve the interpretation of Greek law, we examined the\\nsubstance of the Greek court’s decision and held that “we\\nmay properly decline to extend comity to [it] if it clearly\\n\\f14 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\nmisinterprets the Hague Convention, contravenes the\\nConvention’s fundamental premises or objectives, or fails to\\nmeet a minimum standard of reasonableness.” Id. at 1014.\\n\\n Similarly, this case involves an international convention,\\nthe Convention on the Recognition and Enforcement of\\nForeign Arbitral Awards9 (the “Convention”) and does not\\ninvolve the interpretation of French law. We may refuse to\\nrecognize the Paris Court decision if it “clearly misinterprets\\nthe [] Convention, contravenes the Convention’s fundamental\\npremises or objectives, or fails to meet a minimum standard\\nof reasonableness.” Id.\\n\\n Although Defendants contend that the Paris Court’s\\ndecision conflicts with the Convention, that argument rests on\\nthe premise that the decision failed to apply the law specified\\nby the parties as controlling.10 That is Missouri law, which\\nDefendants acknowledge includes U.S. federal law regarding\\narbitrability under the Federal Arbitration Act (the “FAA”).\\nAccording to Defendants, the Paris Court decision should not\\nbe recognized primarily because it was based on “usual\\npractices of international trade,” not U.S. law.\\n\\n As noted above, our review of the decision of the district\\ncourt here is de novo, but it is important to recognize that our\\nreview of the French court decision is not. We do not sit as\\n\\n 9\\n The United States is a party to that multilateral treaty, sometimes\\ncalled “the New York Convention.” Convention on the Recognition and\\nEnforcement of Foreign Arbitral Awards, June 10, 1958, T.I.A.S. No.\\n6997 (Dec. 29, 1970).\\n 10\\n Because we conclude that the Paris Court’s decision is entitled to\\ncomity even if Missouri law is controlling, we do not need to decide\\nwhether the Paris Court was in fact bound by Missouri law.\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 15\\n\\nan appellate court to review the Court of Appeal of Paris by\\ndeciding whether U.S. law was misapplied.\\n\\n Indeed, the parties explicitly contracted for the resolution\\nof disputes to be by arbitration conducted in Paris, even while\\nproviding that their agreements should be governed by\\nMissouri law, including federal law pertaining to arbitrations.\\nDefendants have affirmatively argued that the court in\\nOregon lacks authority to make a decision regarding the\\njurisdiction of the Tribunal over Dhaheri because it does not\\nhave personal jurisdiction over Dhaheri, a citizen and resident\\nof the UAE. The same argument would appear to apply to\\nany other court located in this country. It could hardly be a\\nsurprise that the Arbitration Award in this case would wind\\nup being reviewed by a French court, subject to review by a\\ncourt of appeals in France, not likely to be experienced in\\nMissouri or U.S. law. That was nearly inevitable based on\\nthe agreements entered by the parties. Under these\\ncircumstances, a foreign court would have to miss the mark\\nby a very wide margin to fail to meet a minimum standard of\\nreasonableness.\\n\\n C. The decisions in this case\\n\\n Using our customary terminology, the Paris Court in\\neffect affirmed a decision by a French trial court that\\nconfirmed the Arbitration Award entered by the Tribunal.\\nThat Award explicitly explained the Tribunal’s determination\\nthat Dhaheri was subject to its jurisdiction. We conclude that\\nthe decision of the Paris Court deserves recognition.\\n\\n The Tribunal was mindful that there were different bodies\\nof law that might apply to the question of jurisdiction. In the\\nArbitration Award it specifically identified the possibility of\\n\\f16 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\napplying Missouri law (the law of the contract), French law\\n(the law of the place of arbitration), UAE law (the law where\\niCapital, LLC was incorporated and Dhaheri resided), and\\ntransnational principles. Its subsequent discussion on the\\nsubject cited to several Missouri and federal court decisions,\\nand that appeared to be what the Tribunal primarily relied\\nupon. The Tribunal offered two separate reasons for its\\nconclusion that Dhaheri was subject to its jurisdiction.\\n\\n First, the Tribunal reasoned that Dhaheri was the sole\\nproprietor of iCapital S/E. Citing UAE law, the law that\\ndirectly governed the responsibilities of a UAE sole\\nproprietorship, it observed that Dhaheri was “personally\\nliable for all of iCapital S/E’s obligations.” iCapital S/E\\nsigned the original CBA. The Tribunal therefore held that\\nbecause iCapital S/E did not have a legal personality\\nindependent of Dhaheri, Dhaheri was also bound by the\\narbitration clause in the original CBA. Although the Tribunal\\nrecognized that Cerner had waived any claims against\\niCapital S/E arising out of the original CBA by signing the\\nSettlement Agreement, it concluded that the waiver did not\\nextend to iCapital S/E’s owner, Dhaheri. The Arbitration\\nAward cited testimony by one witness that the parties\\nunderstood as much when they entered into the Settlement\\nAgreement. It noted as well that Dhaheri did not come within\\nthe ambit of the waiver contained in the Settlement\\nAgreement as he was not personally a party to that\\nagreement.\\n\\n Second, the Tribunal held that Dhaheri could be bound by\\nthe arbitration clauses in the Settlement Agreement and\\nAmendment No. 5 to the CBA as iCapital, LLC’s alter ego.\\nIt explained its finding that all three elements of alter ego\\nliability under Missouri law were present. Dhaheri’s\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 17\\n\\ninvolvement in the affairs of iCapital demonstrated that\\niCapital had no separate mind, will, or existence of its own.\\nDhaheri had used his control over iCapital to permit iCapital\\nto violate a positive legal duty by causing iCapital to breach\\nthe Settlement Agreement and CBA. The violation of that\\nlegal duty caused Cerner’s injuries. The Tribunal concluded\\nthat Dhaheri was subject to its jurisdiction under either\\ntheory.\\n\\n In its opinion, the Paris Court expressly discussed the\\nquestion of whether the Tribunal had jurisdiction over\\nDhaheri. It cited to the discussion of the Tribunal in support\\nof its conclusion on both grounds.\\n\\n It then made the reference to “the usual practices of\\ninternational trade” that appears to form the basis of\\nDefendants’ current argument: “Considering that, according\\nto the usual practices of international trade, the arbitration\\nclause inserted in an international contract has its own\\nspecific validity and effectiveness that require its application\\nto be extended to the parties directly involved in negotiating,\\nentering into, performing and/or terminating the contract.”\\nThe court concluded that because this action arose out of the\\ncontract Dhaheri signed as the sole proprietor of iCapital S/E,\\nDhaheri had necessarily participated in both negotiating and\\nentering into the Settlement Agreement and Amendment No.\\n5 to the CBA.\\n\\n The Paris Court thus held that the Tribunal correctly\\ndetermined that Dhaheri had agreed to arbitrate the claims at\\nissue. As it stated in the translated decision: “it was rightly\\nthat the Arbitrators declared they had jurisdiction with respect\\nto him.”\\n\\f18 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\n Defendants challenge the Paris Court decision as not\\nentitled to comity because it incorrectly relied on the “usual\\npractices of international trade.” According to Defendants,\\nunder the choice of law clause in the CBA, the Court of\\nAppeal of Paris should have applied Missouri and U.S. law.\\nThey therefore maintain that the court of appeal erred by\\nrelying on the principle that an arbitration clause can bind\\nthose involved in negotiating and entering into a contract.\\n\\n The reference in the Paris Court decision to “usual\\npractices of international trade” does not mean that was all\\nthat the Paris Court considered. To the contrary, its decision\\ncontained express references to specific paragraphs in the\\nArbitration Award in which the Tribunal discussed and relied\\nupon principles of Missouri law. That the French court may\\nnot have separately discussed those legal principles in its\\ndecision does not mean that it was unaware of those\\nprinciples or rejected them by basing its own decision on a\\ndifferent body of law. The Paris Court decision cannot be\\ndisregarded because it did not repeat the Tribunal’s\\ndiscussion regarding the law to be applied. Nor have\\nDefendants demonstrated that the reference by the Paris Court\\nto the “usual practices of international trade” was in such\\nconflict with Missouri or U.S. law that we can conclude that\\nit failed to meet a minimum standard of reasonableness.\\n\\n More broadly, Defendants misapprehend the focus of our\\nanalysis. In Asvesta, we recognized that a foreign decision\\nmay be entitled to comity even if we disagree with its\\nreasoning. 580 F.3d at 1012, 1021. We will extend comity\\nto a foreign decision unless the ultimate result fails to meet a\\nminimum standard of reasonableness. See id.\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 19\\n\\n It appears to us that the conclusion of the Paris Court that\\nDhaheri was properly bound by the arbitration clauses in the\\nvarious agreements was far from unreasonable under\\nMissouri law. The issue of “arbitrability” is one as to which\\nfederal arbitrability law is controlling. Mitsubishi Motors\\nCorp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626\\n(1985) (the “federal substantive law of arbitrability” applies\\nto “any arbitration agreement within the coverage of the\\n[FAA],” including cases falling under the Convention); see\\nalso State ex rel. Pinkerton v. Fahnestock, 531 S.W.3d 36, 49\\nn.8 (Mo. 2017) (en banc) (applying federal arbitrability law\\nin FAA action).\\n\\n Defendants argue that the question of whether the parties\\nagreed to arbitrate here was to be decided by the court, not\\nthe arbitrator. Assuming that there was such a requirement\\nhere, it was satisfied. The court decision can come after the\\narbitration has been conducted, when a court confirms the\\narbitrator’s award, as it did here. See generally First Options\\nof Chicago, Inc. v. Kaplan, 514 U.S. 938 940–41 (1995)\\n(considering challenge to arbitrability raised in confirmation\\nproceedings); Carpenters 46 N. California Ctys. Conference\\nBd. v. Zcon Builders, 96 F.3d 410, 416 (9th Cir. 1996)\\n(directing district court to review arbitrability in confirmation\\nproceedings).\\n\\n Similarly, as to substance, it does not appear to us that the\\nconclusion of the Paris Court failed to meet a minimum\\nstandard of reasonableness. “General contract and agency\\nprinciples apply in determining the enforcement of an\\narbitration agreement by or against nonsignatories.” Mundi\\nv. Union Sec. Life Ins. Co., 555 F.3d 1042, 1045 (9th Cir.\\n2009). One of those principles is “veil-piercing/alter ego.”\\nId.; accord Cent. Tr. Bank v. Graves, 495 S.W.3d 797, 803\\n\\f20 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\n(Mo. Ct. App. 2016). The French court was not well off the\\nmark in concluding the Tribunal could have reasonably\\nexercised jurisdiction over Dhaheri because iCapital, LLC\\nsigned a valid arbitration agreement and Dhaheri was\\niCapital’s alter ego.11\\n\\n Under Missouri law,12 the corporate veil may be pierced\\nand a court may conclude that an individual shareholder is the\\ncorporation’s alter ego if (1) the shareholder exerted control\\nover the corporation, which had “no separate mind, will or\\nexistence of its own,” (2) that control was “used by the\\ncorporation to commit fraud or wrong, to perpetrate the\\nviolation of statutory or other positive legal duty, or dishonest\\nand unjust act in contravention of [the] plaintiff’s legal\\nrights,” and (3) “[t]he control and breach of duty . . .\\nproximately cause[d] the injury . . . complained of.” Doe\\n1631 v. Quest Diagnostics, Inc., 395 S.W.3d 8, 18 (Mo. 2013)\\n(en banc) (emphases omitted); accord 66, Inc. v. Crestwood\\n\\n\\n 11\\n In different circumstances, we held in Yang v. Majestic Blue\\nFisheries, LLC that a party which did not itself sign an arbitration\\nagreement could not compel another party which had signed an agreement\\nwith another party to arbitrate in cases governed by the Convention.\\n876 F.3d 996, 998–1001 (9th Cir. 2017). That case can arguably be\\ndistinguished on the facts. More importantly, other circuits have\\ndisagreed on this issue. See, e.g., Int’l Paper Co. v. Schwabedissen\\nMaschinen & Anlagen GMBH, 206 F.3d 411, 418 n.7 (4th Cir. 2000)\\n(“[T]he estoppel doctrine also applies to nonsignatories to arbitration\\nagreements governed by the Convention.”). In light of that circuit split,\\nwe cannot conclude that it would have been unreasonable for the Tribunal\\nor the Paris Court to rely on an alter ego theory.\\n 12\\n State law governs this issue. See First Options, 514 U.S. at 944\\n(“When deciding whether the parties agreed to arbitrate a certain matter\\n. . . courts generally . . . should apply ordinary state-law principles that\\ngovern the formation of contracts[.]”).\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 21\\n\\nCommons Redevelopment Corp., 998 S.W.2d 32, 40 (Mo.\\n1999) (en banc). Based on Cerner’s complaint, all three\\nfactors are met here. As a factual matter, Defendants have\\nnot established anything erroneous in the Tribunal’s findings\\nto that effect.\\n\\n Numerous facts demonstrated Dhaheri’s control over\\niCapital, LLC, as the Tribunal found. Dhaheri held 99% of\\niCapital’s shares, was the “sole financial and operational\\ndecision-maker for iCapital,” and “call[ed] the shots” for\\niCapital. In addition, Dhaheri was “a source, if not the main\\nsource” of iCapital’s funds. Indeed, he referred to iCapital’s\\ndebts as his own, and he informed Cerner that iCapital would\\nmake the payments called for by the CBA when he personally\\nhad the funds. That was enough under Missouri law to\\nestablish that Dhaheri controlled iCapital. See State ex rel.\\nFamily Support Div. v. Steak’m Take’m LLC, 524 S.W.3d\\n584, 593 (Mo. Ct. App. 2017) (control established because\\n100% shareholder “had complete control over both the\\nfinances and management of [the corporation] and complete\\nauthority to make all decisions”); Mobius Mgmt. Sys., Inc. v.\\nW. Physician Search, L.L.C., 175 S.W.3d 186, 188 (Mo. Ct.\\nApp. 2005) (control established because 80% shareholder\\nmade all pertinent corporate decisions).\\n\\n The Tribunal concluded that Dhaheri used the corporate\\nform to violate his legal obligations under the CBA and SPA.\\nUnder Missouri law, a plaintiff can satisfy this element of\\nthe veil piercing test by showing “actual fraud” or\\n“undercapitalization.” Crestwood Commons, 998 S.W.2d\\nat 41. Dhaheri knew how much money iCapital owed Cerner\\nand promised that the necessary funds would be available, but\\nDhaheri failed to provide iCapital with that funding. As the\\nTribunal recognized, “it is now obvious that [iCapital] did not\\n\\f22 CERNER MIDDLE EAST LTD. V. ICAPITAL\\n\\nhave sufficient funds for those payments.” Moreover, the\\nTribunal found that Dhaheri transformed iCapital into a\\nlimited liability company for the purpose of evading his\\ncontractual obligations under the CBA. Those facts\\nsupported piercing the corporate veil under Missouri law. See\\nMobius, 175 S.W.3d at 189 (second element established\\nbecause controlling shareholder “admitted that, when he\\nagreed to and signed [a consent judgment], he knew [the\\ncorporation] was unable to pay it”); see also Crestwood\\nCommons, 998 S.W.2d at 41 (second element established\\nbecause “the uncapitalized shell corporation was used to\\navoid debts arising out of the condemnation proceeding”).\\n\\n Finally, the third element of Missouri’s veil piercing test,\\nthat Cerner suffered injury as a result, was obviously met.\\nWhen Dhaheri failed to ensure that iCapital, LLC was able to\\nmake the payments that were due, Cerner suffered the injury\\nunderlying this action. Dhaheri’s actions satisfy Missouri’s\\ncausation standard. See Mobius, 175 S.W.3d at 189.\\n\\n The decision of the Paris Court reasonably confirmed the\\nTribunal’s conclusion that Dhaheri was iCapital, LLC’s alter\\nego. On that basis, it could have determined that Dhaheri was\\nbound by the arbitration clauses in the SPA and Amendment\\nNo. 5 to the CBA.13 We conclude that the Paris Court’s\\nconclusion that the Tribunal had jurisdiction did not fail to\\nmeet a minimum standard of reasonableness. That decision\\ndeserves recognition under the principles of international\\ncomity.\\n\\n\\n\\n 13\\n As it is unnecessary, we do not discuss the other ground relied upon\\nby the Tribunal and confirmed by the Paris Court, Dhaheri’s personal\\nresponsibility as the sole proprietor of iCapital S/E.\\n\\f CERNER MIDDLE EAST LTD. V. ICAPITAL 23\\n\\nIII. Conclusion\\n\\n In sum, we hold that a court of competent jurisdiction has\\ndetermined that Dhaheri was properly within the jurisdiction\\nof the arbitration. Because the Arbitration Award is\\nenforceable, Cerner has established both elements of quasi in\\nrem jurisdiction with respect to Dhaheri: Cerner possesses a\\nvalid judgment against Dhaheri, and Dhaheri owns property\\nthat is located in Oregon. Based on the Paris Court decision\\nissued subsequent to the district court’s order, we reverse the\\ndistrict court’s order dismissing this case for lack of personal\\njurisdiction and remand for further proceedings.14\\n\\n REVERSED and REMANDED for further\\nproceedings.\\n\\n\\n\\n\\n 14\\n As it does not appear that iCapital, LLC owns any property in\\nOregon, its status in the litigation at this point is unclear. That has not\\nbeen a topic of serious discussion on appeal. If they are interested, the\\nparties may address that question on remand.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4478,"cells":{"id":{"kind":"number","value":4663420,"string":"4,663,420"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Cerner Middle East Limited v. Belbadi Enterprises LLC"},"decision_date":{"kind":"string","value":"2019-09-23"},"docket_number":{"kind":"string","value":"17-35157"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Richard R. Clifton and Consuelo M. Callahan, Circuit Judges, and Roger T. Benitez,* District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"CLIFTON, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n CERNER MIDDLE EAST LIMITED, a No. 17-35157\\n Cayman Islands Exempted\\n Company, D.C. No.\\n Plaintiff-Appellant, 3:16-cv-05706-\\n RBL\\n v.\\n\\n BELBADI ENTERPRISES LLC, a OPINION\\n U.A.E. Limited Liability Company;\\n VANDEVCO LIMITED, a Washington\\n Corporation,\\n Defendants-Appellees.\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Washington\\n Ronald B. Leighton, District Judge, Presiding\\n\\n Argued and Submitted October 12, 2018\\n Portland, Oregon\\n\\n Filed September 23, 2019\\n\\n Before: Richard R. Clifton and Consuelo M. Callahan,\\n Circuit Judges, and Roger T. Benitez,* District Judge.\\n\\n Opinion by Judge Clifton\\n\\n *\\n The Honorable Roger T. Benitez, United States District Judge for\\nthe Southern District of California, sitting by designation.\\n\\f2 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\\n\\n SUMMARY**\\n\\n\\n Removal / International Arbitration\\n\\n The panel reversed the district court’s order denying\\nplaintiff’s motion to remand to state court an action that had\\nbeen removed to federal court on the basis that it related to an\\ninternational arbitration award.\\n\\n 9 U.S.C. § 205 authorizes the removal by a defendant of\\nan action previously filed in state court if the action relates to\\nan arbitration agreement or award under the Convention on\\nthe Recognition and Enforcement of Foreign Arbitral\\nAwards. The panel concluded that the outcome of this case\\ncould not conceivably be affected by an arbitration award\\narising from a dispute concerning a contract for the\\ndevelopment of medical information software. Specifically,\\nthe arbitration award could not have preclusive effect over\\nwhether certain entities were alter egos or over the amount of\\ndamages that certain entities owed to the plaintiff; the factual\\nfindings in the arbitration award could not affect the outcome\\nof this case; and the possibility that the district court could\\nfind persuasive the legal analysis contained in the arbitration\\naward was insufficient. The panel therefore held that the\\naction did not relate to an arbitration agreement under the\\nConvention. Accordingly, 28 U.S.C. § 205 did not authorize\\nremoval of the action to federal court or provide federal\\nsubject matter jurisdiction over this case.\\n\\n\\n\\n\\n **\\n This summary constitutes no part of the opinion of the court. It has\\nbeen prepared by court staff for the convenience of the reader.\\n\\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 3\\n\\n The panel reversed the district court’s order and remanded\\nwith instructions to remand the case to state court.\\n\\n\\n COUNSEL\\n\\nWarren E. Gluck (argued), Samuel Spital, and Stosh Silivos,\\nHolland & Knight LLP, New York, New York; David J.\\nElkanich and Garrett S. Garfield, Holland & Knight LLP,\\nPortland, Oregon; for Plaintiff-Appellant.\\n\\nPaul H. Trinchero (argued) and Gary I. Grenley, Garvey\\nSchubert Barer, Portland, Oregon, for Defendants-Appellees.\\n\\n\\n OPINION\\n\\nCLIFTON, Circuit Judge:\\n\\n This appeal presents questions regarding the removal\\nfrom state court to federal court of an action that arguably\\nrelates to an international arbitration award. Under 9 U.S.C.\\n§ 205, a defendant is authorized to remove to federal court an\\naction previously filed in state court that “relates to an\\narbitration agreement or award falling under” the Convention\\non the Recognition and Enforcement of Foreign Arbitral\\nAwards of June 10, 1958, sometimes described as the “New\\nYork Convention.” Plaintiff-Appellant Cerner Middle East\\nLimited filed an action in Washington state court against\\nDefendants-Appellees Belbadi Enterprises, LLC and\\nVandevco Limited. Defendants removed the action to federal\\ndistrict court. Cerner moved to remand it to state court,\\narguing that the removal was improper and that the federal\\ncourt lacked subject matter jurisdiction over the action. The\\n\\f4 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\\n\\ndistrict court denied that motion to remand, holding that it\\ncould exercise jurisdiction under 9 U.S.C. § 205.\\n\\n In our view, this case is not related to an international\\narbitration agreement or award, as that term is used in the\\nstatute, and no other basis for federal jurisdiction has been\\noffered by Defendants. We therefore reverse the district\\ncourt’s denial of Cerner’s motion to remand and remand the\\ncase to the district court with instructions that it be remanded\\nto the Washington state court.\\n\\nI. Background\\n\\n This action is one of several disputes between Cerner, on\\none side, and Ahmed Saeed Mohammad Al Badi Al Dhaheri1\\nand entities controlled by Dhaheri, on the other. 2\\n\\n Plaintiff Cerner Middle East Limited (which will be\\nidentified in this opinion as “Cerner”) is a Cayman Islands\\ncorporation with its principal place of business in Kansas\\nCity, Missouri. It is a subsidiary of Cerner Corporation, a\\nmedical services technology company based in Kansas City,\\n\\n\\n\\n 1\\n As sometimes happens with names translated from another\\nlanguage, Dhaheri’s name has been spelled in various ways. We use the\\nspelling used in the brief filed in this appeal on behalf of the corporations\\naffiliated with him.\\n 2\\n Another one of those disputes resulted in an appeal from a decision\\nby the U.S. District Court for the District of Oregon, argued to the same\\npanel of this court on the same day. Although there is substantial overlap\\nin the factual background, the issues in the two appeals are distinct and\\nthey are resolved in separate opinions. See Cerner Middle East Limited\\nv. iCapital, LLC, No. 17-35514, ___ F.3d ____ (9th Cir. 2019).\\n\\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 5\\n\\nwhose revenue in 2018 was in excess of $5 billion and whose\\nstock is listed on the NASDAQ exchange.\\n\\n Dhaheri, a businessman with substantial holdings, is a\\ncitizen and domiciliary of the United Arab Emirates\\n(“UAE”). He is not a party to the current action, but Cerner\\nalleges that Dhaheri owns and controls Defendant Belbadi\\nEnterprises, LLC, a UAE corporation with its principal place\\nof business in Abu Dhabi, UAE. Cerner further alleges that\\nBelbadi is the owner of Defendant Vandevco Limited, that\\nVandevco is a Washington corporation with its principal\\nplace of business in Vancouver, Washington, and that\\nVandevco owns, through other entities, the Vancouver\\nCenter, a mixed residential and commercial development in\\nVancouver. Cerner alleges that Vandevco is an alter ego of\\nBelbadi for jurisdictional and liability purposes. Other\\nentities related to Dhaheri that are involved in the history of\\nthis dispute, though not parties in this action, include iCapital\\nS/E, a UAE sole proprietorship through which Dhaheri did\\nbusiness, and iCapital, LLC, a UAE limited liability company\\nalso owned and controlled by Dhaheri.\\n\\n The disputes arose from a contract originally entered into\\nbetween Cerner and iCapital S/E. In 2008, the United Arab\\nEmirates Ministry of Health awarded iCapital S/E a contract\\nto develop medical information software for use in the UAE.\\niCapital S/E and Cerner signed a contract (the “Cerner\\nBusiness Agreement” or “CBA”) under which Cerner would\\nprovide hardware, software, and services for the UAE project.\\nThe CBA required the parties to submit any disputes to\\nbinding arbitration under the rules of the International\\nChamber of Commerce (“ICC”), specified that the seat of\\narbitration shall be in Paris, France, and stated that the\\nlanguage of an arbitration shall be English. The contract also\\n\\f6 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\\n\\ncontained a choice of law clause that stated that it “shall be\\ngoverned by, construed, interpreted and enforced in\\naccordance with the laws of the State of Missouri[.]”\\n\\n Cerner filed a request for arbitration with the ICC in\\nSeptember 2012. It contended that iCapital S/E had failed to\\nmake payments that were due under the CBA. It also\\ncomplained that iCapital S/E, a sole proprietorship, had been\\nreorganized into iCapital, LLC, a limited liability company,\\nwithout Cerner’s consent, which Cerner alleged was contrary\\nto the terms of the CBA.\\n\\n The dispute appeared to have been settled three months\\nlater. The settlement divided iCapital’s liability into two\\nparts: the amount that iCapital owed Cerner for the work\\nalready completed under the CBA (the “Overdue Amount”),\\nand the amount that iCapital would owe Cerner for the future\\nwork contemplated by the CBA (the “Future Payments”).\\nThe liability of iCapital for the Overdue Amount was\\naddressed in a Settlement and Payment Agreement\\n(“Settlement Agreement”) signed by Cerner and iCapital,\\nLLC. It set the amount owed to Cerner for past performance\\nand waived claims for past acts or omissions by the other\\nparty and its affiliates and their directors, officers, employees,\\nagents, and representatives. iCapital, LLC agreed to pay\\nCerner the owed amount by issuing a series of post-dated\\nchecks. The liability for Future Payments was addressed in\\nAmendment No. 5 to the CBA, also signed by Cerner and\\niCapital, LLC. That Amendment “re-schedule[d] the Future\\nPayments owed to Cerner” under the original CBA.\\n\\n Amendment No. 5 also revised the language of the\\noriginal CBA’s arbitration clause, retaining the elements\\ndescribed above that required the parties to submit any\\n\\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 7\\n\\ndisputes to binding arbitration under the rules of the ICC, to\\nbe conducted in English in Paris. The Settlement Agreement\\nadopted the arbitration clause set forth in Amendment No. 5\\nto the CBA, and the choice of law clause set forth in the\\noriginal CBA.\\n\\n To induce Cerner to enter the settlement, Belbadi, an\\nentity not previously involved in the transaction, entered into\\ntwo separate agreements to guarantee the obligations of\\niCapital, LLC (collectively, the “Guarantees”). In the first\\nagreement, the “Corporate Guarantee,” Belbadi guaranteed\\niCapital’s obligation to pay the Overdue Amount. In the\\nsecond agreement, the “Corporate Security Guarantee,”\\nBelbadi guaranteed iCapital’s obligation to make the Future\\nPayments.\\n\\n Unfortunately, the settlement did not bring a lasting\\npeace. In August 2013, Cerner initiated with the ICC a\\nsecond request for arbitration against iCapital, LLC and\\nDhaheri, contending, among other things, that iCapital, LLC\\nhad failed to make payments called for by the Settlement\\nAgreement. iCapital responded to the notification by\\nobjecting to the arbitration. Dhaheri declined to respond to\\ncorrespondence from the arbitration administrator. The\\nInternational Court of Arbitration of the ICC concluded that\\nthe arbitration should proceed against both respondents and\\nappointed a three-member arbitral tribunal (“Tribunal”).\\n\\n That Tribunal issued its award in July 2015 (the\\n“Arbitration Award”). It determined that it had jurisdiction\\nover both iCapital, LLC and Dhaheri personally. Its Award\\nheld both iCapital, LLC and Dhaheri liable to Cerner for\\nmore than $62 million in damages. After the Tribunal ruled\\nin its favor, Cerner filed a series of actions in the United\\n\\f8 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\\n\\nStates that sought to enforce either the Guarantees or the\\nArbitration Award.\\n\\n This is one of those actions. It was initiated on July 20,\\n2016, when Cerner filed a verified complaint in Washington\\nstate court naming Belbadi and Vandevco as defendants.\\nCerner alleged that Belbadi breached the Guarantees and that\\nVandevco, as Belbadi’s alter ego, was equally liable. Cerner\\nsought more than $62 million in damages, plus interest,\\nattorneys’ fees, and costs. It also sought attachment of the\\nshares in Vandevco owned by Belbadi. Cerner attached\\nseveral documents to its complaint, including the Guarantees,\\nthe Settlement Agreement, Amendment No. 5 to the CBA,\\nand the Arbitration Award.\\n\\n Defendants responded by removing the case to federal\\ncourt. Defendants’ notice of removal asserted that the district\\ncourt could exercise subject matter jurisdiction under\\n9 U.S.C. § 205, because this case was related to the\\nArbitration Award.\\n\\n After removal, the parties filed competing motions.\\nCerner moved to remand the action to state court, arguing that\\nremoval was improper and that the district court lacked\\nfederal subject matter jurisdiction. Defendants maintained\\nthat the action should be dismissed entirely because Belbadi\\nwas not subject to personal jurisdiction for these claims in\\nany Washington court, state or federal.\\n\\n The district court ruled in favor of Belbadi on both\\nmotions. It denied Cerner’s motion to remand, concluding\\nthat removal of the case to federal court was proper because\\nthis case was related to the Arbitration Award. The district\\ncourt reasoned that the Award could affect the questions of\\n\\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 9\\n\\nalter ego liability raised by Cerner’s claims. It then granted\\nBelbadi’s motion to dismiss for lack of personal jurisdiction\\nbecause it held that Belbadi lacked sufficient connections to\\nthe State of Washington to subject it to the personal\\njurisdiction of a court in Washington.\\n\\n A timely notice of appeal was filed by Cerner.\\n\\nII. Discussion\\n\\n It has famously been observed that “‘[j]urisdiction’ is a\\nword of many, too many, meanings.” United States v.\\nVanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996); see also Steel\\nCo. v. Citizens for a Better Environment, 523 U.S. 83, 90\\n(1998) (quoting Vanness). The arguments of the parties\\nbefore the district court, repeated here, reflect three distinct\\nforms of jurisdiction. One is whether a federal court has\\nsubject matter jurisdiction over the claims at issue in this\\ncase. Cerner contends that Congress has not authorized the\\nfederal courts to exercise jurisdiction over these claims and\\nasserts that we should direct the district court to remand this\\ncase to state court. In addition, Cerner argues that the case\\nthat it initially filed in state court was not properly removed\\nto federal court, contending that the district court lacked a\\nsecond form of jurisdiction, namely removal jurisdiction,\\nseparate from and in addition to lacking federal subject matter\\njurisdiction.3\\n\\n 3\\n Although it is not clear that proper removal is actually\\n“jurisdictional” in the more traditional sense, see Caterpillar Inc. v. Lewis,\\n519 U.S. 61, 64 (1996) (holding that the “fail[ure] to remand a case\\nimproperly removed is not fatal to the ensuing adjudication if federal\\njurisdictional requirements are met at the time judgment is entered”), the\\nterm “removal jurisdiction” is often used. See, e.g., Kircher v. Putnam\\nFunds Trust, 547 U.S. 633, 642–44 (2006).\\n\\f10 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\\n\\n Belbadi, on the other hand, argues that it is not subject to\\nthe jurisdiction of any court in Washington because the\\nclaims are not connected to Washington and because Belbadi\\ndoes not have sufficient contacts with that state to permit a\\ncourt in that state to exercise jurisdiction over it. It therefore\\ncontends that we should affirm the district court’s order\\ndismissing the case for lack of personal jurisdiction.\\n\\n Reviewing de novo, see Providence Health Plan v.\\nMcDowell, 385 F.3d 1168, 1171 (9th Cir. 2004), we conclude\\nthat the district court erred in denying Cerner’s motion to\\nremand because the case was not properly removed to federal\\ncourt and the federal courts lack federal subject matter\\njurisdiction over this case. We do not reach the issue of\\npersonal jurisdiction and leave that issue for the state court\\nfollowing remand. See Ruhrgas AG v. Marathon Oil Co.,\\n526 U.S. 574, 586 (1999).\\n\\n As noted above, 9 U.S.C. § 205 authorizes the removal by\\na defendant of an action previously filed in state court if the\\naction relates to an arbitration agreement or award under the\\nConvention on the Recognition and Enforcement of Foreign\\nArbitral Awards, the New York Convention. It is part of a set\\nof statutes pertaining to that Convention, 9 U.S.C.\\n§§ 201–208. Section 205 states that “[w]here the subject\\nmatter of an action or proceeding pending in a State court\\nrelates to an arbitration agreement or award falling under the\\nConvention,” a defendant may “remove such action or\\nproceeding to the district court of the United States for the\\n\\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 11\\n\\ndistrict and division embracing the place where the action or\\nproceeding is pending.”4\\n\\n Defendants contend that section 205 both authorized the\\nremoval of this action to federal court and provides for the\\nfederal subject matter jurisdiction necessary for federal courts\\nto exercise authority over it.5 The key question is whether\\n\\n\\n\\n 4\\n Section 205 provides, in full:\\n\\n Where the subject matter of an action or proceeding\\n pending in a State court relates to an arbitration\\n agreement or award falling under the Convention, the\\n defendant or the defendants may, at any time before the\\n trial thereof, remove such action or proceeding to the\\n district court of the United States for the district and\\n division embracing the place where the action or\\n proceeding is pending. The procedure for removal of\\n causes otherwise provided by law shall apply, except\\n that the ground for removal provided in this section\\n need not appear on the face of the complaint but may be\\n shown in the petition for removal. For the purposes of\\n Chapter 1 of this title any action or proceeding removed\\n under this section shall be deemed to have been brought\\n in the district court to which it is removed.\\n\\n9 U.S.C. § 205.\\n 5\\n A different statute within the same chapter, 9 U.S.C. § 203, speaks\\nmore explicitly to federal subject matter jurisdiction: “An action or\\nproceeding falling under the Convention shall be deemed to arise under\\nthe laws and treaties of the United States. The district courts of the United\\nStates (including the courts enumerated in section 460 of title 28) shall\\nhave original jurisdiction over such an action or proceeding, regardless of\\nthe amount in controversy.” Defendants do not argue that section 203\\napplies to provide federal subject matter jurisdiction over this action, but\\nthey contend that section 205 independently grants federal jurisdiction.\\n\\f12 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\\n\\nthis case falls within section 205—whether it “relates to an\\narbitration agreement or award falling under the Convention.”\\n\\n We discussed the meaning of that provision in Infuturia\\nGlobal Ltd. v. Sequus Pharmaceuticals, Inc., 631 F.3d 1133\\n(9th Cir. 2011), where we held that an action was properly\\nremoved if the agreement or award “could conceivably affect\\nthe outcome of the plaintiff’s case.” Id. at 1138 (quoting\\nBeiser v. Weyler, 284 F.3d 665, 669 (5th Cir. 2002))\\n(emphasis in original). We described the phrase “relates to”\\nas “plainly broad,” and interpreted it accordingly. Id. In\\nInfuturia, we concluded that the standard was met because the\\ndefendant “relie[d] on the affirmative defense of collateral\\nestoppel regarding issues already resolved against the\\nplaintiff in arbitration.” Id.\\n\\n We apply that standard, but it leads us to a different result\\nin this case. Defendants offer three arguments as to how the\\noutcome of this case could conceivably be affected by the\\nArbitration Award, but we have not been persuaded. As a\\nresult, we conclude that Section 205 did not provide a proper\\nbasis for removal or for federal subject matter jurisdiction\\nover this action.6\\n\\n First, Defendants contend that, as in Infuturia, the\\nArbitration Award could have preclusive effect over two\\nissues: (1) whether Belbadi, Vandevco, and Dhaheri are alter\\negos, and (2) the amount of damages that Belbadi and\\nVandevco owe Cerner. The arbitration involved a different\\nset of entities, however. The respondents named in the\\narbitration were iCapital, LLC and Dhaheri. The defendants\\n\\n 6\\n We therefore do not reach the issue of whether section 205 provides\\na basis in addition to section 203 for federal subject matter jurisdiction.\\n\\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 13\\n\\nin this action are Belbadi and Vandevco. The Arbitration\\nAward addressed the issue of whether iCapital, LLC and\\nDhaheri are alter egos. Cerner’s complaint, in contrast,\\nalleges that Belbadi, its subsidiary Vandevco, and Dhaheri are\\nalter egos. The Arbitration Award cannot have preclusive\\neffect over those allegations. See generally Kleenwell\\nBiohazard Waste & Gen. Ecology Consultants, Inc. v. Nelson,\\n48 F.3d 391, 395 n.5 (9th Cir. 1995) (applying Washington\\nlaw) (collateral estoppel only applies if the issues raised in\\ntwo different cases are “identical”).\\n\\n Similarly, the Arbitration Award did not determine the\\namount of damages that Belbadi and Vandevco may owe\\nCerner. Under the Guarantees, Belbadi is liable for the entire\\nOverdue Amount and all of the Future Payments, offset by\\nany payments made by iCapital. Belbadi was not a party to\\nthe arbitration and its liability was not adjudicated or\\ncalculated in the Arbitration Award. Because the Arbitration\\nAward did not resolve those issues, collateral estoppel does\\nnot apply. See id. Cerner concedes that it will have to prove\\nits claims without relying on the Arbitration Award.\\n\\n Second, Defendants contend that the factual findings in\\nthe Arbitration Award could affect the outcome of this case.\\nThose findings would be inadmissible if and when this case\\nproceeds to a factual adjudication. See generally United\\nStates v. Stinson, 647 F.3d 1196, 1210 (9th Cir. 2011) (a prior\\njudgment is hearsay if offered to prove the truth of matters\\nasserted in the judgment). If the complaint is challenged\\nprior to a factual adjudication, as in the context of a motion\\nto dismiss, it is the facts alleged that would be at issue and\\nCerner could allege the same facts in its complaint without\\nciting the Arbitration Award at all. The Award itself will not\\nestablish the sufficiency or viability of Cerner’s claims. It is\\n\\f14 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\\n\\ntrue that Cerner attached the Arbitration Award as an exhibit\\nto its complaint, among other documents, but Cerner could\\nhave alleged the same facts in its complaint without citing the\\nArbitration Award at all. In any event, the Award never\\nmentions Vandevco. From our review it appears that the\\nAward adds nothing meaningful to the detailed alter ego\\nallegations already contained in the complaint, allegations\\nthat apply to the relevant Defendants, Belbadi and Vandevco.\\n\\n Third, Defendants assert that the court could find the legal\\nanalysis contained in the Arbitration Award “persuasive,”\\neven if it lacked preclusive effect. The “relates to” and\\n“conceivably affect” standard may be broad, but it is not\\nlimitless. The possibility that some discussion in the Award\\nmight conceivably be perceived as persuasive—just as a law\\nreview article might be persuasive—cannot be enough by\\nitself, unless there is something unique about the Award\\nbeing the source of the analysis. The notion that the legal\\nanalysis of a tribunal of three arbitrators, from France,\\nJordan, and Ireland, would actually affect the decision of a\\nfederal or state trial court on the claims made in this action is\\nnot realistic. Defendants do not point to specific legal\\nconclusions in the Award that will plausibly impact the\\nultimate adjudication of the claims in this action. The\\nArbitration Award would not be controlling as to these\\nDefendants, and it would not affect the court’s obligation to\\ncorrectly interpret controlling law. See Goel v.\\nRamachandran, 823 F. Supp. 2d 206, 216 (S.D.N.Y. 2011)\\n(action not related to arbitration proceedings even if those\\nproceedings “determine[d] some issues that would also be\\nrelevant to [the case]”).\\n\\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 15\\n\\nIII. Conclusion\\n\\n In sum, we conclude that the current action does not\\n“relate[] to an arbitration agreement or award,” as that term\\nis used in section 205. That section did not authorize removal\\nof this action to federal court or provide federal subject\\nmatter jurisdiction over this case. We reverse the district\\ncourt’s denial of Cerner’s motion to remand and remand this\\ncase with instructions for the district court to remand this case\\nto Washington state court.\\n\\n REVERSED and REMANDED for further\\nproceedings.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4440673/\", \"author_raw\": \"CLIFTON, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"RICHARD R CLIFTON"},"judge2":{"kind":"string","value":"CONSUELO M CALLAHAN"},"judge3":{"kind":"string","value":"ROGER T BENITEZ"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4663420/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Cerner Middle East Limited v. Belbadi Enterprises LLC\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-23\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n CERNER MIDDLE EAST LIMITED, a No. 17-35157\n Cayman Islands Exempted\n Company, D.C. No.\n Plaintiff-Appellant, 3:16-cv-05706-\n RBL\n v.\n\n BELBADI ENTERPRISES LLC, a OPINION\n U.A.E. Limited Liability Company;\n VANDEVCO LIMITED, a Washington\n Corporation,\n Defendants-Appellees.\n\n\n Appeal from the United States District Court\n for the Western District of Washington\n Ronald B. Leighton, District Judge, Presiding\n\n Argued and Submitted October 12, 2018\n Portland, Oregon\n\n Filed September 23, 2019\n\n Before: Richard R. Clifton and Consuelo M. Callahan,\n Circuit Judges, and Roger T. Benitez,* District Judge.\n\n Opinion by Judge Clifton\n\n *\n The Honorable Roger T. Benitez, United States District Judge for\nthe Southern District of California, sitting by designation.\n\f2 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\n\n SUMMARY**\n\n\n Removal / International Arbitration\n\n The panel reversed the district court’s order denying\nplaintiff’s motion to remand to state court an action that had\nbeen removed to federal court on the basis that it related to an\ninternational arbitration award.\n\n 9 U.S.C. § 205 authorizes the removal by a defendant of\nan action previously filed in state court if the action relates to\nan arbitration agreement or award under the Convention on\nthe Recognition and Enforcement of Foreign Arbitral\nAwards. The panel concluded that the outcome of this case\ncould not conceivably be affected by an arbitration award\narising from a dispute concerning a contract for the\ndevelopment of medical information software. Specifically,\nthe arbitration award could not have preclusive effect over\nwhether certain entities were alter egos or over the amount of\ndamages that certain entities owed to the plaintiff; the factual\nfindings in the arbitration award could not affect the outcome\nof this case; and the possibility that the district court could\nfind persuasive the legal analysis contained in the arbitration\naward was insufficient. The panel therefore held that the\naction did not relate to an arbitration agreement under the\nConvention. Accordingly, 28 U.S.C. § 205 did not authorize\nremoval of the action to federal court or provide federal\nsubject matter jurisdiction over this case.\n\n\n\n\n **\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 3\n\n The panel reversed the district court’s order and remanded\nwith instructions to remand the case to state court.\n\n\n COUNSEL\n\nWarren E. Gluck (argued), Samuel Spital, and Stosh Silivos,\nHolland & Knight LLP, New York, New York; David J.\nElkanich and Garrett S. Garfield, Holland & Knight LLP,\nPortland, Oregon; for Plaintiff-Appellant.\n\nPaul H. Trinchero (argued) and Gary I. Grenley, Garvey\nSchubert Barer, Portland, Oregon, for Defendants-Appellees.\n\n\n OPINION\n\nCLIFTON, Circuit Judge:\n\n This appeal presents questions regarding the removal\nfrom state court to federal court of an action that arguably\nrelates to an international arbitration award. Under 9 U.S.C.\n§ 205, a defendant is authorized to remove to federal court an\naction previously filed in state court that “relates to an\narbitration agreement or award falling under” the Convention\non the Recognition and Enforcement of Foreign Arbitral\nAwards of June 10, 1958, sometimes described as the “New\nYork Convention.” Plaintiff-Appellant Cerner Middle East\nLimited filed an action in Washington state court against\nDefendants-Appellees Belbadi Enterprises, LLC and\nVandevco Limited. Defendants removed the action to federal\ndistrict court. Cerner moved to remand it to state court,\narguing that the removal was improper and that the federal\ncourt lacked subject matter jurisdiction over the action. The\n\f4 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\n\ndistrict court denied that motion to remand, holding that it\ncould exercise jurisdiction under 9 U.S.C. § 205.\n\n In our view, this case is not related to an international\narbitration agreement or award, as that term is used in the\nstatute, and no other basis for federal jurisdiction has been\noffered by Defendants. We therefore reverse the district\ncourt’s denial of Cerner’s motion to remand and remand the\ncase to the district court with instructions that it be remanded\nto the Washington state court.\n\nI. Background\n\n This action is one of several disputes between Cerner, on\none side, and Ahmed Saeed Mohammad Al Badi Al Dhaheri1\nand entities controlled by Dhaheri, on the other. 2\n\n Plaintiff Cerner Middle East Limited (which will be\nidentified in this opinion as “Cerner”) is a Cayman Islands\ncorporation with its principal place of business in Kansas\nCity, Missouri. It is a subsidiary of Cerner Corporation, a\nmedical services technology company based in Kansas City,\n\n\n\n 1\n As sometimes happens with names translated from another\nlanguage, Dhaheri’s name has been spelled in various ways. We use the\nspelling used in the brief filed in this appeal on behalf of the corporations\naffiliated with him.\n 2\n Another one of those disputes resulted in an appeal from a decision\nby the U.S. District Court for the District of Oregon, argued to the same\npanel of this court on the same day. Although there is substantial overlap\nin the factual background, the issues in the two appeals are distinct and\nthey are resolved in separate opinions. See Cerner Middle East Limited\nv. iCapital, LLC, No. 17-35514, ___ F.3d ____ (9th Cir. 2019).\n\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 5\n\nwhose revenue in 2018 was in excess of $5 billion and whose\nstock is listed on the NASDAQ exchange.\n\n Dhaheri, a businessman with substantial holdings, is a\ncitizen and domiciliary of the United Arab Emirates\n(“UAE”). He is not a party to the current action, but Cerner\nalleges that Dhaheri owns and controls Defendant Belbadi\nEnterprises, LLC, a UAE corporation with its principal place\nof business in Abu Dhabi, UAE. Cerner further alleges that\nBelbadi is the owner of Defendant Vandevco Limited, that\nVandevco is a Washington corporation with its principal\nplace of business in Vancouver, Washington, and that\nVandevco owns, through other entities, the Vancouver\nCenter, a mixed residential and commercial development in\nVancouver. Cerner alleges that Vandevco is an alter ego of\nBelbadi for jurisdictional and liability purposes. Other\nentities related to Dhaheri that are involved in the history of\nthis dispute, though not parties in this action, include iCapital\nS/E, a UAE sole proprietorship through which Dhaheri did\nbusiness, and iCapital, LLC, a UAE limited liability company\nalso owned and controlled by Dhaheri.\n\n The disputes arose from a contract originally entered into\nbetween Cerner and iCapital S/E. In 2008, the United Arab\nEmirates Ministry of Health awarded iCapital S/E a contract\nto develop medical information software for use in the UAE.\niCapital S/E and Cerner signed a contract (the “Cerner\nBusiness Agreement” or “CBA”) under which Cerner would\nprovide hardware, software, and services for the UAE project.\nThe CBA required the parties to submit any disputes to\nbinding arbitration under the rules of the International\nChamber of Commerce (“ICC”), specified that the seat of\narbitration shall be in Paris, France, and stated that the\nlanguage of an arbitration shall be English. The contract also\n\f6 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\n\ncontained a choice of law clause that stated that it “shall be\ngoverned by, construed, interpreted and enforced in\naccordance with the laws of the State of Missouri[.]”\n\n Cerner filed a request for arbitration with the ICC in\nSeptember 2012. It contended that iCapital S/E had failed to\nmake payments that were due under the CBA. It also\ncomplained that iCapital S/E, a sole proprietorship, had been\nreorganized into iCapital, LLC, a limited liability company,\nwithout Cerner’s consent, which Cerner alleged was contrary\nto the terms of the CBA.\n\n The dispute appeared to have been settled three months\nlater. The settlement divided iCapital’s liability into two\nparts: the amount that iCapital owed Cerner for the work\nalready completed under the CBA (the “Overdue Amount”),\nand the amount that iCapital would owe Cerner for the future\nwork contemplated by the CBA (the “Future Payments”).\nThe liability of iCapital for the Overdue Amount was\naddressed in a Settlement and Payment Agreement\n(“Settlement Agreement”) signed by Cerner and iCapital,\nLLC. It set the amount owed to Cerner for past performance\nand waived claims for past acts or omissions by the other\nparty and its affiliates and their directors, officers, employees,\nagents, and representatives. iCapital, LLC agreed to pay\nCerner the owed amount by issuing a series of post-dated\nchecks. The liability for Future Payments was addressed in\nAmendment No. 5 to the CBA, also signed by Cerner and\niCapital, LLC. That Amendment “re-schedule[d] the Future\nPayments owed to Cerner” under the original CBA.\n\n Amendment No. 5 also revised the language of the\noriginal CBA’s arbitration clause, retaining the elements\ndescribed above that required the parties to submit any\n\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 7\n\ndisputes to binding arbitration under the rules of the ICC, to\nbe conducted in English in Paris. The Settlement Agreement\nadopted the arbitration clause set forth in Amendment No. 5\nto the CBA, and the choice of law clause set forth in the\noriginal CBA.\n\n To induce Cerner to enter the settlement, Belbadi, an\nentity not previously involved in the transaction, entered into\ntwo separate agreements to guarantee the obligations of\niCapital, LLC (collectively, the “Guarantees”). In the first\nagreement, the “Corporate Guarantee,” Belbadi guaranteed\niCapital’s obligation to pay the Overdue Amount. In the\nsecond agreement, the “Corporate Security Guarantee,”\nBelbadi guaranteed iCapital’s obligation to make the Future\nPayments.\n\n Unfortunately, the settlement did not bring a lasting\npeace. In August 2013, Cerner initiated with the ICC a\nsecond request for arbitration against iCapital, LLC and\nDhaheri, contending, among other things, that iCapital, LLC\nhad failed to make payments called for by the Settlement\nAgreement. iCapital responded to the notification by\nobjecting to the arbitration. Dhaheri declined to respond to\ncorrespondence from the arbitration administrator. The\nInternational Court of Arbitration of the ICC concluded that\nthe arbitration should proceed against both respondents and\nappointed a three-member arbitral tribunal (“Tribunal”).\n\n That Tribunal issued its award in July 2015 (the\n“Arbitration Award”). It determined that it had jurisdiction\nover both iCapital, LLC and Dhaheri personally. Its Award\nheld both iCapital, LLC and Dhaheri liable to Cerner for\nmore than $62 million in damages. After the Tribunal ruled\nin its favor, Cerner filed a series of actions in the United\n\f8 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\n\nStates that sought to enforce either the Guarantees or the\nArbitration Award.\n\n This is one of those actions. It was initiated on July 20,\n2016, when Cerner filed a verified complaint in Washington\nstate court naming Belbadi and Vandevco as defendants.\nCerner alleged that Belbadi breached the Guarantees and that\nVandevco, as Belbadi’s alter ego, was equally liable. Cerner\nsought more than $62 million in damages, plus interest,\nattorneys’ fees, and costs. It also sought attachment of the\nshares in Vandevco owned by Belbadi. Cerner attached\nseveral documents to its complaint, including the Guarantees,\nthe Settlement Agreement, Amendment No. 5 to the CBA,\nand the Arbitration Award.\n\n Defendants responded by removing the case to federal\ncourt. Defendants’ notice of removal asserted that the district\ncourt could exercise subject matter jurisdiction under\n9 U.S.C. § 205, because this case was related to the\nArbitration Award.\n\n After removal, the parties filed competing motions.\nCerner moved to remand the action to state court, arguing that\nremoval was improper and that the district court lacked\nfederal subject matter jurisdiction. Defendants maintained\nthat the action should be dismissed entirely because Belbadi\nwas not subject to personal jurisdiction for these claims in\nany Washington court, state or federal.\n\n The district court ruled in favor of Belbadi on both\nmotions. It denied Cerner’s motion to remand, concluding\nthat removal of the case to federal court was proper because\nthis case was related to the Arbitration Award. The district\ncourt reasoned that the Award could affect the questions of\n\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 9\n\nalter ego liability raised by Cerner’s claims. It then granted\nBelbadi’s motion to dismiss for lack of personal jurisdiction\nbecause it held that Belbadi lacked sufficient connections to\nthe State of Washington to subject it to the personal\njurisdiction of a court in Washington.\n\n A timely notice of appeal was filed by Cerner.\n\nII. Discussion\n\n It has famously been observed that “‘[j]urisdiction’ is a\nword of many, too many, meanings.” United States v.\nVanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996); see also Steel\nCo. v. Citizens for a Better Environment, 523 U.S. 83, 90\n(1998) (quoting Vanness). The arguments of the parties\nbefore the district court, repeated here, reflect three distinct\nforms of jurisdiction. One is whether a federal court has\nsubject matter jurisdiction over the claims at issue in this\ncase. Cerner contends that Congress has not authorized the\nfederal courts to exercise jurisdiction over these claims and\nasserts that we should direct the district court to remand this\ncase to state court. In addition, Cerner argues that the case\nthat it initially filed in state court was not properly removed\nto federal court, contending that the district court lacked a\nsecond form of jurisdiction, namely removal jurisdiction,\nseparate from and in addition to lacking federal subject matter\njurisdiction.3\n\n 3\n Although it is not clear that proper removal is actually\n“jurisdictional” in the more traditional sense, see Caterpillar Inc. v. Lewis,\n519 U.S. 61, 64 (1996) (holding that the “fail[ure] to remand a case\nimproperly removed is not fatal to the ensuing adjudication if federal\njurisdictional requirements are met at the time judgment is entered”), the\nterm “removal jurisdiction” is often used. See, e.g., Kircher v. Putnam\nFunds Trust, 547 U.S. 633, 642–44 (2006).\n\f10 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\n\n Belbadi, on the other hand, argues that it is not subject to\nthe jurisdiction of any court in Washington because the\nclaims are not connected to Washington and because Belbadi\ndoes not have sufficient contacts with that state to permit a\ncourt in that state to exercise jurisdiction over it. It therefore\ncontends that we should affirm the district court’s order\ndismissing the case for lack of personal jurisdiction.\n\n Reviewing de novo, see Providence Health Plan v.\nMcDowell, 385 F.3d 1168, 1171 (9th Cir. 2004), we conclude\nthat the district court erred in denying Cerner’s motion to\nremand because the case was not properly removed to federal\ncourt and the federal courts lack federal subject matter\njurisdiction over this case. We do not reach the issue of\npersonal jurisdiction and leave that issue for the state court\nfollowing remand. See Ruhrgas AG v. Marathon Oil Co.,\n526 U.S. 574, 586 (1999).\n\n As noted above, 9 U.S.C. § 205 authorizes the removal by\na defendant of an action previously filed in state court if the\naction relates to an arbitration agreement or award under the\nConvention on the Recognition and Enforcement of Foreign\nArbitral Awards, the New York Convention. It is part of a set\nof statutes pertaining to that Convention, 9 U.S.C.\n§§ 201–208. Section 205 states that “[w]here the subject\nmatter of an action or proceeding pending in a State court\nrelates to an arbitration agreement or award falling under the\nConvention,” a defendant may “remove such action or\nproceeding to the district court of the United States for the\n\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 11\n\ndistrict and division embracing the place where the action or\nproceeding is pending.”4\n\n Defendants contend that section 205 both authorized the\nremoval of this action to federal court and provides for the\nfederal subject matter jurisdiction necessary for federal courts\nto exercise authority over it.5 The key question is whether\n\n\n\n 4\n Section 205 provides, in full:\n\n Where the subject matter of an action or proceeding\n pending in a State court relates to an arbitration\n agreement or award falling under the Convention, the\n defendant or the defendants may, at any time before the\n trial thereof, remove such action or proceeding to the\n district court of the United States for the district and\n division embracing the place where the action or\n proceeding is pending. The procedure for removal of\n causes otherwise provided by law shall apply, except\n that the ground for removal provided in this section\n need not appear on the face of the complaint but may be\n shown in the petition for removal. For the purposes of\n Chapter 1 of this title any action or proceeding removed\n under this section shall be deemed to have been brought\n in the district court to which it is removed.\n\n9 U.S.C. § 205.\n 5\n A different statute within the same chapter, 9 U.S.C. § 203, speaks\nmore explicitly to federal subject matter jurisdiction: “An action or\nproceeding falling under the Convention shall be deemed to arise under\nthe laws and treaties of the United States. The district courts of the United\nStates (including the courts enumerated in section 460 of title 28) shall\nhave original jurisdiction over such an action or proceeding, regardless of\nthe amount in controversy.” Defendants do not argue that section 203\napplies to provide federal subject matter jurisdiction over this action, but\nthey contend that section 205 independently grants federal jurisdiction.\n\f12 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\n\nthis case falls within section 205—whether it “relates to an\narbitration agreement or award falling under the Convention.”\n\n We discussed the meaning of that provision in Infuturia\nGlobal Ltd. v. Sequus Pharmaceuticals, Inc., 631 F.3d 1133\n(9th Cir. 2011), where we held that an action was properly\nremoved if the agreement or award “could conceivably affect\nthe outcome of the plaintiff’s case.” Id. at 1138 (quoting\nBeiser v. Weyler, 284 F.3d 665, 669 (5th Cir. 2002))\n(emphasis in original). We described the phrase “relates to”\nas “plainly broad,” and interpreted it accordingly. Id. In\nInfuturia, we concluded that the standard was met because the\ndefendant “relie[d] on the affirmative defense of collateral\nestoppel regarding issues already resolved against the\nplaintiff in arbitration.” Id.\n\n We apply that standard, but it leads us to a different result\nin this case. Defendants offer three arguments as to how the\noutcome of this case could conceivably be affected by the\nArbitration Award, but we have not been persuaded. As a\nresult, we conclude that Section 205 did not provide a proper\nbasis for removal or for federal subject matter jurisdiction\nover this action.6\n\n First, Defendants contend that, as in Infuturia, the\nArbitration Award could have preclusive effect over two\nissues: (1) whether Belbadi, Vandevco, and Dhaheri are alter\negos, and (2) the amount of damages that Belbadi and\nVandevco owe Cerner. The arbitration involved a different\nset of entities, however. The respondents named in the\narbitration were iCapital, LLC and Dhaheri. The defendants\n\n 6\n We therefore do not reach the issue of whether section 205 provides\na basis in addition to section 203 for federal subject matter jurisdiction.\n\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 13\n\nin this action are Belbadi and Vandevco. The Arbitration\nAward addressed the issue of whether iCapital, LLC and\nDhaheri are alter egos. Cerner’s complaint, in contrast,\nalleges that Belbadi, its subsidiary Vandevco, and Dhaheri are\nalter egos. The Arbitration Award cannot have preclusive\neffect over those allegations. See generally Kleenwell\nBiohazard Waste & Gen. Ecology Consultants, Inc. v. Nelson,\n48 F.3d 391, 395 n.5 (9th Cir. 1995) (applying Washington\nlaw) (collateral estoppel only applies if the issues raised in\ntwo different cases are “identical”).\n\n Similarly, the Arbitration Award did not determine the\namount of damages that Belbadi and Vandevco may owe\nCerner. Under the Guarantees, Belbadi is liable for the entire\nOverdue Amount and all of the Future Payments, offset by\nany payments made by iCapital. Belbadi was not a party to\nthe arbitration and its liability was not adjudicated or\ncalculated in the Arbitration Award. Because the Arbitration\nAward did not resolve those issues, collateral estoppel does\nnot apply. See id. Cerner concedes that it will have to prove\nits claims without relying on the Arbitration Award.\n\n Second, Defendants contend that the factual findings in\nthe Arbitration Award could affect the outcome of this case.\nThose findings would be inadmissible if and when this case\nproceeds to a factual adjudication. See generally United\nStates v. Stinson, 647 F.3d 1196, 1210 (9th Cir. 2011) (a prior\njudgment is hearsay if offered to prove the truth of matters\nasserted in the judgment). If the complaint is challenged\nprior to a factual adjudication, as in the context of a motion\nto dismiss, it is the facts alleged that would be at issue and\nCerner could allege the same facts in its complaint without\nciting the Arbitration Award at all. The Award itself will not\nestablish the sufficiency or viability of Cerner’s claims. It is\n\f14 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\n\ntrue that Cerner attached the Arbitration Award as an exhibit\nto its complaint, among other documents, but Cerner could\nhave alleged the same facts in its complaint without citing the\nArbitration Award at all. In any event, the Award never\nmentions Vandevco. From our review it appears that the\nAward adds nothing meaningful to the detailed alter ego\nallegations already contained in the complaint, allegations\nthat apply to the relevant Defendants, Belbadi and Vandevco.\n\n Third, Defendants assert that the court could find the legal\nanalysis contained in the Arbitration Award “persuasive,”\neven if it lacked preclusive effect. The “relates to” and\n“conceivably affect” standard may be broad, but it is not\nlimitless. The possibility that some discussion in the Award\nmight conceivably be perceived as persuasive—just as a law\nreview article might be persuasive—cannot be enough by\nitself, unless there is something unique about the Award\nbeing the source of the analysis. The notion that the legal\nanalysis of a tribunal of three arbitrators, from France,\nJordan, and Ireland, would actually affect the decision of a\nfederal or state trial court on the claims made in this action is\nnot realistic. Defendants do not point to specific legal\nconclusions in the Award that will plausibly impact the\nultimate adjudication of the claims in this action. The\nArbitration Award would not be controlling as to these\nDefendants, and it would not affect the court’s obligation to\ncorrectly interpret controlling law. See Goel v.\nRamachandran, 823 F. Supp. 2d 206, 216 (S.D.N.Y. 2011)\n(action not related to arbitration proceedings even if those\nproceedings “determine[d] some issues that would also be\nrelevant to [the case]”).\n\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 15\n\nIII. Conclusion\n\n In sum, we conclude that the current action does not\n“relate[] to an arbitration agreement or award,” as that term\nis used in section 205. That section did not authorize removal\nof this action to federal court or provide federal subject\nmatter jurisdiction over this case. We reverse the district\ncourt’s denial of Cerner’s motion to remand and remand this\ncase with instructions for the district court to remand this case\nto Washington state court.\n\n REVERSED and REMANDED for further\nproceedings.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Cerner Middle East Limited v. Belbadi Enterprises LLC\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-23\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n CERNER MIDDLE EAST LIMITED, a No. 17-35157\\n Cayman Islands Exempted\\n Company, D.C. No.\\n Plaintiff-Appellant, 3:16-cv-05706-\\n RBL\\n v.\\n\\n BELBADI ENTERPRISES LLC, a OPINION\\n U.A.E. Limited Liability Company;\\n VANDEVCO LIMITED, a Washington\\n Corporation,\\n Defendants-Appellees.\\n\\n\\n Appeal from the United States District Court\\n for the Western District of Washington\\n Ronald B. Leighton, District Judge, Presiding\\n\\n Argued and Submitted October 12, 2018\\n Portland, Oregon\\n\\n Filed September 23, 2019\\n\\n Before: Richard R. Clifton and Consuelo M. Callahan,\\n Circuit Judges, and Roger T. Benitez,* District Judge.\\n\\n Opinion by Judge Clifton\\n\\n *\\n The Honorable Roger T. Benitez, United States District Judge for\\nthe Southern District of California, sitting by designation.\\n\\f2 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\\n\\n SUMMARY**\\n\\n\\n Removal / International Arbitration\\n\\n The panel reversed the district court’s order denying\\nplaintiff’s motion to remand to state court an action that had\\nbeen removed to federal court on the basis that it related to an\\ninternational arbitration award.\\n\\n 9 U.S.C. § 205 authorizes the removal by a defendant of\\nan action previously filed in state court if the action relates to\\nan arbitration agreement or award under the Convention on\\nthe Recognition and Enforcement of Foreign Arbitral\\nAwards. The panel concluded that the outcome of this case\\ncould not conceivably be affected by an arbitration award\\narising from a dispute concerning a contract for the\\ndevelopment of medical information software. Specifically,\\nthe arbitration award could not have preclusive effect over\\nwhether certain entities were alter egos or over the amount of\\ndamages that certain entities owed to the plaintiff; the factual\\nfindings in the arbitration award could not affect the outcome\\nof this case; and the possibility that the district court could\\nfind persuasive the legal analysis contained in the arbitration\\naward was insufficient. The panel therefore held that the\\naction did not relate to an arbitration agreement under the\\nConvention. Accordingly, 28 U.S.C. § 205 did not authorize\\nremoval of the action to federal court or provide federal\\nsubject matter jurisdiction over this case.\\n\\n\\n\\n\\n **\\n This summary constitutes no part of the opinion of the court. It has\\nbeen prepared by court staff for the convenience of the reader.\\n\\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 3\\n\\n The panel reversed the district court’s order and remanded\\nwith instructions to remand the case to state court.\\n\\n\\n COUNSEL\\n\\nWarren E. Gluck (argued), Samuel Spital, and Stosh Silivos,\\nHolland & Knight LLP, New York, New York; David J.\\nElkanich and Garrett S. Garfield, Holland & Knight LLP,\\nPortland, Oregon; for Plaintiff-Appellant.\\n\\nPaul H. Trinchero (argued) and Gary I. Grenley, Garvey\\nSchubert Barer, Portland, Oregon, for Defendants-Appellees.\\n\\n\\n OPINION\\n\\nCLIFTON, Circuit Judge:\\n\\n This appeal presents questions regarding the removal\\nfrom state court to federal court of an action that arguably\\nrelates to an international arbitration award. Under 9 U.S.C.\\n§ 205, a defendant is authorized to remove to federal court an\\naction previously filed in state court that “relates to an\\narbitration agreement or award falling under” the Convention\\non the Recognition and Enforcement of Foreign Arbitral\\nAwards of June 10, 1958, sometimes described as the “New\\nYork Convention.” Plaintiff-Appellant Cerner Middle East\\nLimited filed an action in Washington state court against\\nDefendants-Appellees Belbadi Enterprises, LLC and\\nVandevco Limited. Defendants removed the action to federal\\ndistrict court. Cerner moved to remand it to state court,\\narguing that the removal was improper and that the federal\\ncourt lacked subject matter jurisdiction over the action. The\\n\\f4 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\\n\\ndistrict court denied that motion to remand, holding that it\\ncould exercise jurisdiction under 9 U.S.C. § 205.\\n\\n In our view, this case is not related to an international\\narbitration agreement or award, as that term is used in the\\nstatute, and no other basis for federal jurisdiction has been\\noffered by Defendants. We therefore reverse the district\\ncourt’s denial of Cerner’s motion to remand and remand the\\ncase to the district court with instructions that it be remanded\\nto the Washington state court.\\n\\nI. Background\\n\\n This action is one of several disputes between Cerner, on\\none side, and Ahmed Saeed Mohammad Al Badi Al Dhaheri1\\nand entities controlled by Dhaheri, on the other. 2\\n\\n Plaintiff Cerner Middle East Limited (which will be\\nidentified in this opinion as “Cerner”) is a Cayman Islands\\ncorporation with its principal place of business in Kansas\\nCity, Missouri. It is a subsidiary of Cerner Corporation, a\\nmedical services technology company based in Kansas City,\\n\\n\\n\\n 1\\n As sometimes happens with names translated from another\\nlanguage, Dhaheri’s name has been spelled in various ways. We use the\\nspelling used in the brief filed in this appeal on behalf of the corporations\\naffiliated with him.\\n 2\\n Another one of those disputes resulted in an appeal from a decision\\nby the U.S. District Court for the District of Oregon, argued to the same\\npanel of this court on the same day. Although there is substantial overlap\\nin the factual background, the issues in the two appeals are distinct and\\nthey are resolved in separate opinions. See Cerner Middle East Limited\\nv. iCapital, LLC, No. 17-35514, ___ F.3d ____ (9th Cir. 2019).\\n\\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 5\\n\\nwhose revenue in 2018 was in excess of $5 billion and whose\\nstock is listed on the NASDAQ exchange.\\n\\n Dhaheri, a businessman with substantial holdings, is a\\ncitizen and domiciliary of the United Arab Emirates\\n(“UAE”). He is not a party to the current action, but Cerner\\nalleges that Dhaheri owns and controls Defendant Belbadi\\nEnterprises, LLC, a UAE corporation with its principal place\\nof business in Abu Dhabi, UAE. Cerner further alleges that\\nBelbadi is the owner of Defendant Vandevco Limited, that\\nVandevco is a Washington corporation with its principal\\nplace of business in Vancouver, Washington, and that\\nVandevco owns, through other entities, the Vancouver\\nCenter, a mixed residential and commercial development in\\nVancouver. Cerner alleges that Vandevco is an alter ego of\\nBelbadi for jurisdictional and liability purposes. Other\\nentities related to Dhaheri that are involved in the history of\\nthis dispute, though not parties in this action, include iCapital\\nS/E, a UAE sole proprietorship through which Dhaheri did\\nbusiness, and iCapital, LLC, a UAE limited liability company\\nalso owned and controlled by Dhaheri.\\n\\n The disputes arose from a contract originally entered into\\nbetween Cerner and iCapital S/E. In 2008, the United Arab\\nEmirates Ministry of Health awarded iCapital S/E a contract\\nto develop medical information software for use in the UAE.\\niCapital S/E and Cerner signed a contract (the “Cerner\\nBusiness Agreement” or “CBA”) under which Cerner would\\nprovide hardware, software, and services for the UAE project.\\nThe CBA required the parties to submit any disputes to\\nbinding arbitration under the rules of the International\\nChamber of Commerce (“ICC”), specified that the seat of\\narbitration shall be in Paris, France, and stated that the\\nlanguage of an arbitration shall be English. The contract also\\n\\f6 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\\n\\ncontained a choice of law clause that stated that it “shall be\\ngoverned by, construed, interpreted and enforced in\\naccordance with the laws of the State of Missouri[.]”\\n\\n Cerner filed a request for arbitration with the ICC in\\nSeptember 2012. It contended that iCapital S/E had failed to\\nmake payments that were due under the CBA. It also\\ncomplained that iCapital S/E, a sole proprietorship, had been\\nreorganized into iCapital, LLC, a limited liability company,\\nwithout Cerner’s consent, which Cerner alleged was contrary\\nto the terms of the CBA.\\n\\n The dispute appeared to have been settled three months\\nlater. The settlement divided iCapital’s liability into two\\nparts: the amount that iCapital owed Cerner for the work\\nalready completed under the CBA (the “Overdue Amount”),\\nand the amount that iCapital would owe Cerner for the future\\nwork contemplated by the CBA (the “Future Payments”).\\nThe liability of iCapital for the Overdue Amount was\\naddressed in a Settlement and Payment Agreement\\n(“Settlement Agreement”) signed by Cerner and iCapital,\\nLLC. It set the amount owed to Cerner for past performance\\nand waived claims for past acts or omissions by the other\\nparty and its affiliates and their directors, officers, employees,\\nagents, and representatives. iCapital, LLC agreed to pay\\nCerner the owed amount by issuing a series of post-dated\\nchecks. The liability for Future Payments was addressed in\\nAmendment No. 5 to the CBA, also signed by Cerner and\\niCapital, LLC. That Amendment “re-schedule[d] the Future\\nPayments owed to Cerner” under the original CBA.\\n\\n Amendment No. 5 also revised the language of the\\noriginal CBA’s arbitration clause, retaining the elements\\ndescribed above that required the parties to submit any\\n\\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 7\\n\\ndisputes to binding arbitration under the rules of the ICC, to\\nbe conducted in English in Paris. The Settlement Agreement\\nadopted the arbitration clause set forth in Amendment No. 5\\nto the CBA, and the choice of law clause set forth in the\\noriginal CBA.\\n\\n To induce Cerner to enter the settlement, Belbadi, an\\nentity not previously involved in the transaction, entered into\\ntwo separate agreements to guarantee the obligations of\\niCapital, LLC (collectively, the “Guarantees”). In the first\\nagreement, the “Corporate Guarantee,” Belbadi guaranteed\\niCapital’s obligation to pay the Overdue Amount. In the\\nsecond agreement, the “Corporate Security Guarantee,”\\nBelbadi guaranteed iCapital’s obligation to make the Future\\nPayments.\\n\\n Unfortunately, the settlement did not bring a lasting\\npeace. In August 2013, Cerner initiated with the ICC a\\nsecond request for arbitration against iCapital, LLC and\\nDhaheri, contending, among other things, that iCapital, LLC\\nhad failed to make payments called for by the Settlement\\nAgreement. iCapital responded to the notification by\\nobjecting to the arbitration. Dhaheri declined to respond to\\ncorrespondence from the arbitration administrator. The\\nInternational Court of Arbitration of the ICC concluded that\\nthe arbitration should proceed against both respondents and\\nappointed a three-member arbitral tribunal (“Tribunal”).\\n\\n That Tribunal issued its award in July 2015 (the\\n“Arbitration Award”). It determined that it had jurisdiction\\nover both iCapital, LLC and Dhaheri personally. Its Award\\nheld both iCapital, LLC and Dhaheri liable to Cerner for\\nmore than $62 million in damages. After the Tribunal ruled\\nin its favor, Cerner filed a series of actions in the United\\n\\f8 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\\n\\nStates that sought to enforce either the Guarantees or the\\nArbitration Award.\\n\\n This is one of those actions. It was initiated on July 20,\\n2016, when Cerner filed a verified complaint in Washington\\nstate court naming Belbadi and Vandevco as defendants.\\nCerner alleged that Belbadi breached the Guarantees and that\\nVandevco, as Belbadi’s alter ego, was equally liable. Cerner\\nsought more than $62 million in damages, plus interest,\\nattorneys’ fees, and costs. It also sought attachment of the\\nshares in Vandevco owned by Belbadi. Cerner attached\\nseveral documents to its complaint, including the Guarantees,\\nthe Settlement Agreement, Amendment No. 5 to the CBA,\\nand the Arbitration Award.\\n\\n Defendants responded by removing the case to federal\\ncourt. Defendants’ notice of removal asserted that the district\\ncourt could exercise subject matter jurisdiction under\\n9 U.S.C. § 205, because this case was related to the\\nArbitration Award.\\n\\n After removal, the parties filed competing motions.\\nCerner moved to remand the action to state court, arguing that\\nremoval was improper and that the district court lacked\\nfederal subject matter jurisdiction. Defendants maintained\\nthat the action should be dismissed entirely because Belbadi\\nwas not subject to personal jurisdiction for these claims in\\nany Washington court, state or federal.\\n\\n The district court ruled in favor of Belbadi on both\\nmotions. It denied Cerner’s motion to remand, concluding\\nthat removal of the case to federal court was proper because\\nthis case was related to the Arbitration Award. The district\\ncourt reasoned that the Award could affect the questions of\\n\\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 9\\n\\nalter ego liability raised by Cerner’s claims. It then granted\\nBelbadi’s motion to dismiss for lack of personal jurisdiction\\nbecause it held that Belbadi lacked sufficient connections to\\nthe State of Washington to subject it to the personal\\njurisdiction of a court in Washington.\\n\\n A timely notice of appeal was filed by Cerner.\\n\\nII. Discussion\\n\\n It has famously been observed that “‘[j]urisdiction’ is a\\nword of many, too many, meanings.” United States v.\\nVanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996); see also Steel\\nCo. v. Citizens for a Better Environment, 523 U.S. 83, 90\\n(1998) (quoting Vanness). The arguments of the parties\\nbefore the district court, repeated here, reflect three distinct\\nforms of jurisdiction. One is whether a federal court has\\nsubject matter jurisdiction over the claims at issue in this\\ncase. Cerner contends that Congress has not authorized the\\nfederal courts to exercise jurisdiction over these claims and\\nasserts that we should direct the district court to remand this\\ncase to state court. In addition, Cerner argues that the case\\nthat it initially filed in state court was not properly removed\\nto federal court, contending that the district court lacked a\\nsecond form of jurisdiction, namely removal jurisdiction,\\nseparate from and in addition to lacking federal subject matter\\njurisdiction.3\\n\\n 3\\n Although it is not clear that proper removal is actually\\n“jurisdictional” in the more traditional sense, see Caterpillar Inc. v. Lewis,\\n519 U.S. 61, 64 (1996) (holding that the “fail[ure] to remand a case\\nimproperly removed is not fatal to the ensuing adjudication if federal\\njurisdictional requirements are met at the time judgment is entered”), the\\nterm “removal jurisdiction” is often used. See, e.g., Kircher v. Putnam\\nFunds Trust, 547 U.S. 633, 642–44 (2006).\\n\\f10 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\\n\\n Belbadi, on the other hand, argues that it is not subject to\\nthe jurisdiction of any court in Washington because the\\nclaims are not connected to Washington and because Belbadi\\ndoes not have sufficient contacts with that state to permit a\\ncourt in that state to exercise jurisdiction over it. It therefore\\ncontends that we should affirm the district court’s order\\ndismissing the case for lack of personal jurisdiction.\\n\\n Reviewing de novo, see Providence Health Plan v.\\nMcDowell, 385 F.3d 1168, 1171 (9th Cir. 2004), we conclude\\nthat the district court erred in denying Cerner’s motion to\\nremand because the case was not properly removed to federal\\ncourt and the federal courts lack federal subject matter\\njurisdiction over this case. We do not reach the issue of\\npersonal jurisdiction and leave that issue for the state court\\nfollowing remand. See Ruhrgas AG v. Marathon Oil Co.,\\n526 U.S. 574, 586 (1999).\\n\\n As noted above, 9 U.S.C. § 205 authorizes the removal by\\na defendant of an action previously filed in state court if the\\naction relates to an arbitration agreement or award under the\\nConvention on the Recognition and Enforcement of Foreign\\nArbitral Awards, the New York Convention. It is part of a set\\nof statutes pertaining to that Convention, 9 U.S.C.\\n§§ 201–208. Section 205 states that “[w]here the subject\\nmatter of an action or proceeding pending in a State court\\nrelates to an arbitration agreement or award falling under the\\nConvention,” a defendant may “remove such action or\\nproceeding to the district court of the United States for the\\n\\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 11\\n\\ndistrict and division embracing the place where the action or\\nproceeding is pending.”4\\n\\n Defendants contend that section 205 both authorized the\\nremoval of this action to federal court and provides for the\\nfederal subject matter jurisdiction necessary for federal courts\\nto exercise authority over it.5 The key question is whether\\n\\n\\n\\n 4\\n Section 205 provides, in full:\\n\\n Where the subject matter of an action or proceeding\\n pending in a State court relates to an arbitration\\n agreement or award falling under the Convention, the\\n defendant or the defendants may, at any time before the\\n trial thereof, remove such action or proceeding to the\\n district court of the United States for the district and\\n division embracing the place where the action or\\n proceeding is pending. The procedure for removal of\\n causes otherwise provided by law shall apply, except\\n that the ground for removal provided in this section\\n need not appear on the face of the complaint but may be\\n shown in the petition for removal. For the purposes of\\n Chapter 1 of this title any action or proceeding removed\\n under this section shall be deemed to have been brought\\n in the district court to which it is removed.\\n\\n9 U.S.C. § 205.\\n 5\\n A different statute within the same chapter, 9 U.S.C. § 203, speaks\\nmore explicitly to federal subject matter jurisdiction: “An action or\\nproceeding falling under the Convention shall be deemed to arise under\\nthe laws and treaties of the United States. The district courts of the United\\nStates (including the courts enumerated in section 460 of title 28) shall\\nhave original jurisdiction over such an action or proceeding, regardless of\\nthe amount in controversy.” Defendants do not argue that section 203\\napplies to provide federal subject matter jurisdiction over this action, but\\nthey contend that section 205 independently grants federal jurisdiction.\\n\\f12 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\\n\\nthis case falls within section 205—whether it “relates to an\\narbitration agreement or award falling under the Convention.”\\n\\n We discussed the meaning of that provision in Infuturia\\nGlobal Ltd. v. Sequus Pharmaceuticals, Inc., 631 F.3d 1133\\n(9th Cir. 2011), where we held that an action was properly\\nremoved if the agreement or award “could conceivably affect\\nthe outcome of the plaintiff’s case.” Id. at 1138 (quoting\\nBeiser v. Weyler, 284 F.3d 665, 669 (5th Cir. 2002))\\n(emphasis in original). We described the phrase “relates to”\\nas “plainly broad,” and interpreted it accordingly. Id. In\\nInfuturia, we concluded that the standard was met because the\\ndefendant “relie[d] on the affirmative defense of collateral\\nestoppel regarding issues already resolved against the\\nplaintiff in arbitration.” Id.\\n\\n We apply that standard, but it leads us to a different result\\nin this case. Defendants offer three arguments as to how the\\noutcome of this case could conceivably be affected by the\\nArbitration Award, but we have not been persuaded. As a\\nresult, we conclude that Section 205 did not provide a proper\\nbasis for removal or for federal subject matter jurisdiction\\nover this action.6\\n\\n First, Defendants contend that, as in Infuturia, the\\nArbitration Award could have preclusive effect over two\\nissues: (1) whether Belbadi, Vandevco, and Dhaheri are alter\\negos, and (2) the amount of damages that Belbadi and\\nVandevco owe Cerner. The arbitration involved a different\\nset of entities, however. The respondents named in the\\narbitration were iCapital, LLC and Dhaheri. The defendants\\n\\n 6\\n We therefore do not reach the issue of whether section 205 provides\\na basis in addition to section 203 for federal subject matter jurisdiction.\\n\\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 13\\n\\nin this action are Belbadi and Vandevco. The Arbitration\\nAward addressed the issue of whether iCapital, LLC and\\nDhaheri are alter egos. Cerner’s complaint, in contrast,\\nalleges that Belbadi, its subsidiary Vandevco, and Dhaheri are\\nalter egos. The Arbitration Award cannot have preclusive\\neffect over those allegations. See generally Kleenwell\\nBiohazard Waste & Gen. Ecology Consultants, Inc. v. Nelson,\\n48 F.3d 391, 395 n.5 (9th Cir. 1995) (applying Washington\\nlaw) (collateral estoppel only applies if the issues raised in\\ntwo different cases are “identical”).\\n\\n Similarly, the Arbitration Award did not determine the\\namount of damages that Belbadi and Vandevco may owe\\nCerner. Under the Guarantees, Belbadi is liable for the entire\\nOverdue Amount and all of the Future Payments, offset by\\nany payments made by iCapital. Belbadi was not a party to\\nthe arbitration and its liability was not adjudicated or\\ncalculated in the Arbitration Award. Because the Arbitration\\nAward did not resolve those issues, collateral estoppel does\\nnot apply. See id. Cerner concedes that it will have to prove\\nits claims without relying on the Arbitration Award.\\n\\n Second, Defendants contend that the factual findings in\\nthe Arbitration Award could affect the outcome of this case.\\nThose findings would be inadmissible if and when this case\\nproceeds to a factual adjudication. See generally United\\nStates v. Stinson, 647 F.3d 1196, 1210 (9th Cir. 2011) (a prior\\njudgment is hearsay if offered to prove the truth of matters\\nasserted in the judgment). If the complaint is challenged\\nprior to a factual adjudication, as in the context of a motion\\nto dismiss, it is the facts alleged that would be at issue and\\nCerner could allege the same facts in its complaint without\\nciting the Arbitration Award at all. The Award itself will not\\nestablish the sufficiency or viability of Cerner’s claims. It is\\n\\f14 CERNER MIDDLE EAST LTD. V. BELBADI ENTERS.\\n\\ntrue that Cerner attached the Arbitration Award as an exhibit\\nto its complaint, among other documents, but Cerner could\\nhave alleged the same facts in its complaint without citing the\\nArbitration Award at all. In any event, the Award never\\nmentions Vandevco. From our review it appears that the\\nAward adds nothing meaningful to the detailed alter ego\\nallegations already contained in the complaint, allegations\\nthat apply to the relevant Defendants, Belbadi and Vandevco.\\n\\n Third, Defendants assert that the court could find the legal\\nanalysis contained in the Arbitration Award “persuasive,”\\neven if it lacked preclusive effect. The “relates to” and\\n“conceivably affect” standard may be broad, but it is not\\nlimitless. The possibility that some discussion in the Award\\nmight conceivably be perceived as persuasive—just as a law\\nreview article might be persuasive—cannot be enough by\\nitself, unless there is something unique about the Award\\nbeing the source of the analysis. The notion that the legal\\nanalysis of a tribunal of three arbitrators, from France,\\nJordan, and Ireland, would actually affect the decision of a\\nfederal or state trial court on the claims made in this action is\\nnot realistic. Defendants do not point to specific legal\\nconclusions in the Award that will plausibly impact the\\nultimate adjudication of the claims in this action. The\\nArbitration Award would not be controlling as to these\\nDefendants, and it would not affect the court’s obligation to\\ncorrectly interpret controlling law. See Goel v.\\nRamachandran, 823 F. Supp. 2d 206, 216 (S.D.N.Y. 2011)\\n(action not related to arbitration proceedings even if those\\nproceedings “determine[d] some issues that would also be\\nrelevant to [the case]”).\\n\\f CERNER MIDDLE EAST LTD. V. BELBADI ENTERS. 15\\n\\nIII. Conclusion\\n\\n In sum, we conclude that the current action does not\\n“relate[] to an arbitration agreement or award,” as that term\\nis used in section 205. That section did not authorize removal\\nof this action to federal court or provide federal subject\\nmatter jurisdiction over this case. We reverse the district\\ncourt’s denial of Cerner’s motion to remand and remand this\\ncase with instructions for the district court to remand this case\\nto Washington state court.\\n\\n REVERSED and REMANDED for further\\nproceedings.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4479,"cells":{"id":{"kind":"number","value":4663717,"string":"4,663,717"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Gerardo Vazquez v. Jan-Pro Franchising Int'l Inc."},"decision_date":{"kind":"string","value":"2019-09-24"},"docket_number":{"kind":"string","value":"17-16096"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block, District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nGERARDO VAZQUEZ, GLORIA No. 17-16096\\nROMAN, and JUAN AGUILAR, on\\nbehalf of themselves and all other D.C. No.\\nsimilarly situated, 3:16-cv-05961-\\n Plaintiffs-Appellants, WHA\\n\\n v.\\n OPINION\\nJAN-PRO FRANCHISING\\nINTERNATIONAL, INC.,\\n Defendant-Appellee.\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of California\\n William Alsup, District Judge, Presiding\\n\\n Argued and Submitted December 18, 2018\\n San Francisco, California\\n\\n Filed September 24, 2019\\n\\f2 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\\n Judges, and Frederic Block, District Judge. *\\n\\n Per Curiam Opinion\\n\\n\\n SUMMARY **\\n\\n\\n Res Judicata\\n\\n In a separate published order, the panel certified to the\\nCalifornia Supreme Court the issue of the retroactive\\napplication of Dynamex Operations West Inc. v. Superior\\nCourt, 416 P.3d 1 (Cal. 2018), and in this opinion, re-\\nestablished the remaining holdings from the now-withdrawn\\nopinion Vazquez v. Jan-Pro Int’l, Inc., 2019 WL 3271969\\n(9th Cir. Jul. 22, 2019).\\n\\n For the reasons laid out in the earlier opinion, the panel\\nheld that the doctrines of res judicata and law of the case did\\nnot bar plaintiffs from contending that they are employees\\nunder Dynamex’s ABC test, and rejected the contention that\\na retroactive application of Dynamex would violate their\\nfederal due process rights.\\n\\n\\n\\n\\n *\\n The Honorable Frederic Block, United States District Judge for the\\nEastern District of New York, sitting by designation.\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 3\\n\\n COUNSEL\\n\\nShannon Liss-Riordan (argued), Lichten & Liss-Riordan\\nP.C., Boston, Massachusetts, for Plaintiffs-Appellants.\\n\\nJeffrey M. Rosin (argued), O’Hagan Meyer PLLC, Boston,\\nMassachusetts; Theodore J. Boutrous Jr., Theane D.\\nEvangelis, and Samuel Eckman, Gibson Dunn & Crutcher\\nLLP, Los Angeles, California; for Defendant-Appellee.\\n\\nCatherine K. Ruckelshaus and Najah A. Farley, National\\nEmployment Law Project, New York, New York, for Amici\\nCuriae National Employment Law Project, Equal Rights\\nAdvocates, Dolores Street Community Services, Legal Aid\\nat Work, and Worksafe, Inc.\\n\\nNorman M. Leon, DLA Piper LLP, Chicago, Illinois;\\nJonathan Solish, Bryan Cave Leighton Paisner LLP, Santa\\nMonica, California; James F. Speyer, Arnold & Porter Kaye\\nScholer LLP, Los Angeles, California; for Amicus Curiae\\nThe International Franchise Association.\\n\\nBradley A. Benbrook and Stephen M. Duvernay, Benbrook\\nLaw Group PC, Sacramento, California; Luke A. Wake,\\nNFIB Small Business Legal Center, Sacramento, California;\\nfor Amicus Curiae National Federation of Independent\\nBusiness Small Business Legal Center.\\n\\nAdam G. Unikowsky, Jenner & Block LLP, Washington,\\nD.C.; Steven P. Lehotsky, U.S. Chamber Litigation Center,\\nWashington, D.C.; for Amicus Curiae Chamber of\\nCommerce of the United States of America.\\n\\f4 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\nJames F. Speyer, Arnold & Porter Kaye Scholer LLP, Los\\nAngeles, California, for Amicus Curiae California Chamber\\nof Commerce.\\n\\nPaul Grossman and Paul W. Cane Jr., Paul Hastings LLP,\\nLos Angeles, California, for Amicus Curiae California\\nEmployment Law Council.\\n\\n\\n OPINION\\n\\nPER CURIAM:\\n\\n We have certified to the California Supreme Court the\\nquestion whether that Court’s decision in Dynamex\\nOperations West Inc. v. Superior Court, 416 P.3d 1 (Cal.\\n2018), applies retroactively. See Vazquez v. Jan-Pro Int’l,\\nInc., __ F.3d __ (9th Cir. 2019). We here re-establish the\\nremaining holdings from our now-withdrawn opinion in the\\nmatter. See Vazquez v. Jan-Pro Int’l, Inc., __ F.3d __, 2019\\nWL 3271969 (9th Cir. July 22, 2019). For the reasons laid\\nout in our earlier opinion, we hold that the doctrines of res\\njudicata and law of the case do not bar Plaintiffs from\\ncontending that they are employees under Dynamex’s ABC\\ntest. See 923 F.3d at 583–86. We likewise reject Jan-Pro’s\\ncontention that a retroactive application of Dynamex would\\nviolate their federal due process rights. See id. at 588–90.\\nFinally, if Dynamex does apply retroactively, the district\\ncourt’s reliance on Patterson v. Domino’s Pizza, LLC,\\n333 P.3d 723 (Cal. 2014), and the “special features of the\\nfranchise relationship” was misplaced. See id. at 594–95. As\\nthese rulings remain in place, the issue certified to the\\nCalifornia Supreme Court “could determine the outcome” of\\nthe remainder of the appeal. Cal. R. Ct. 8.548(a).\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4440970/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"RONALD M GOULD"},"judge2":{"kind":"string","value":"MARSHA S BERZON"},"judge3":{"kind":"string","value":"FREDERIC BLOCK"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4663717/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Gerardo Vazquez v. Jan-Pro Franchising Int'l Inc.\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nGERARDO VAZQUEZ, GLORIA No. 17-16096\nROMAN, and JUAN AGUILAR, on\nbehalf of themselves and all other D.C. No.\nsimilarly situated, 3:16-cv-05961-\n Plaintiffs-Appellants, WHA\n\n v.\n OPINION\nJAN-PRO FRANCHISING\nINTERNATIONAL, INC.,\n Defendant-Appellee.\n\n\n Appeal from the United States District Court\n for the Northern District of California\n William Alsup, District Judge, Presiding\n\n Argued and Submitted December 18, 2018\n San Francisco, California\n\n Filed September 24, 2019\n\f2 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\n\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\n Judges, and Frederic Block, District Judge. *\n\n Per Curiam Opinion\n\n\n SUMMARY **\n\n\n Res Judicata\n\n In a separate published order, the panel certified to the\nCalifornia Supreme Court the issue of the retroactive\napplication of Dynamex Operations West Inc. v. Superior\nCourt, 416 P.3d 1 (Cal. 2018), and in this opinion, re-\nestablished the remaining holdings from the now-withdrawn\nopinion Vazquez v. Jan-Pro Int’l, Inc., 2019 WL 3271969\n(9th Cir. Jul. 22, 2019).\n\n For the reasons laid out in the earlier opinion, the panel\nheld that the doctrines of res judicata and law of the case did\nnot bar plaintiffs from contending that they are employees\nunder Dynamex’s ABC test, and rejected the contention that\na retroactive application of Dynamex would violate their\nfederal due process rights.\n\n\n\n\n *\n The Honorable Frederic Block, United States District Judge for the\nEastern District of New York, sitting by designation.\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 3\n\n COUNSEL\n\nShannon Liss-Riordan (argued), Lichten & Liss-Riordan\nP.C., Boston, Massachusetts, for Plaintiffs-Appellants.\n\nJeffrey M. Rosin (argued), O’Hagan Meyer PLLC, Boston,\nMassachusetts; Theodore J. Boutrous Jr., Theane D.\nEvangelis, and Samuel Eckman, Gibson Dunn & Crutcher\nLLP, Los Angeles, California; for Defendant-Appellee.\n\nCatherine K. Ruckelshaus and Najah A. Farley, National\nEmployment Law Project, New York, New York, for Amici\nCuriae National Employment Law Project, Equal Rights\nAdvocates, Dolores Street Community Services, Legal Aid\nat Work, and Worksafe, Inc.\n\nNorman M. Leon, DLA Piper LLP, Chicago, Illinois;\nJonathan Solish, Bryan Cave Leighton Paisner LLP, Santa\nMonica, California; James F. Speyer, Arnold & Porter Kaye\nScholer LLP, Los Angeles, California; for Amicus Curiae\nThe International Franchise Association.\n\nBradley A. Benbrook and Stephen M. Duvernay, Benbrook\nLaw Group PC, Sacramento, California; Luke A. Wake,\nNFIB Small Business Legal Center, Sacramento, California;\nfor Amicus Curiae National Federation of Independent\nBusiness Small Business Legal Center.\n\nAdam G. Unikowsky, Jenner & Block LLP, Washington,\nD.C.; Steven P. Lehotsky, U.S. Chamber Litigation Center,\nWashington, D.C.; for Amicus Curiae Chamber of\nCommerce of the United States of America.\n\f4 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\n\nJames F. Speyer, Arnold & Porter Kaye Scholer LLP, Los\nAngeles, California, for Amicus Curiae California Chamber\nof Commerce.\n\nPaul Grossman and Paul W. Cane Jr., Paul Hastings LLP,\nLos Angeles, California, for Amicus Curiae California\nEmployment Law Council.\n\n\n OPINION\n\nPER CURIAM:\n\n We have certified to the California Supreme Court the\nquestion whether that Court’s decision in Dynamex\nOperations West Inc. v. Superior Court, 416 P.3d 1 (Cal.\n2018), applies retroactively. See Vazquez v. Jan-Pro Int’l,\nInc., __ F.3d __ (9th Cir. 2019). We here re-establish the\nremaining holdings from our now-withdrawn opinion in the\nmatter. See Vazquez v. Jan-Pro Int’l, Inc., __ F.3d __, 2019\nWL 3271969 (9th Cir. July 22, 2019). For the reasons laid\nout in our earlier opinion, we hold that the doctrines of res\njudicata and law of the case do not bar Plaintiffs from\ncontending that they are employees under Dynamex’s ABC\ntest. See 923 F.3d at 583–86. We likewise reject Jan-Pro’s\ncontention that a retroactive application of Dynamex would\nviolate their federal due process rights. See id. at 588–90.\nFinally, if Dynamex does apply retroactively, the district\ncourt’s reliance on Patterson v. Domino’s Pizza, LLC,\n333 P.3d 723 (Cal. 2014), and the “special features of the\nfranchise relationship” was misplaced. See id. at 594–95. As\nthese rulings remain in place, the issue certified to the\nCalifornia Supreme Court “could determine the outcome” of\nthe remainder of the appeal. Cal. R. Ct. 8.548(a).\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Gerardo Vazquez v. Jan-Pro Franchising Int'l Inc.\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-24\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nGERARDO VAZQUEZ, GLORIA No. 17-16096\\nROMAN, and JUAN AGUILAR, on\\nbehalf of themselves and all other D.C. No.\\nsimilarly situated, 3:16-cv-05961-\\n Plaintiffs-Appellants, WHA\\n\\n v.\\n OPINION\\nJAN-PRO FRANCHISING\\nINTERNATIONAL, INC.,\\n Defendant-Appellee.\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of California\\n William Alsup, District Judge, Presiding\\n\\n Argued and Submitted December 18, 2018\\n San Francisco, California\\n\\n Filed September 24, 2019\\n\\f2 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\\n Judges, and Frederic Block, District Judge. *\\n\\n Per Curiam Opinion\\n\\n\\n SUMMARY **\\n\\n\\n Res Judicata\\n\\n In a separate published order, the panel certified to the\\nCalifornia Supreme Court the issue of the retroactive\\napplication of Dynamex Operations West Inc. v. Superior\\nCourt, 416 P.3d 1 (Cal. 2018), and in this opinion, re-\\nestablished the remaining holdings from the now-withdrawn\\nopinion Vazquez v. Jan-Pro Int’l, Inc., 2019 WL 3271969\\n(9th Cir. Jul. 22, 2019).\\n\\n For the reasons laid out in the earlier opinion, the panel\\nheld that the doctrines of res judicata and law of the case did\\nnot bar plaintiffs from contending that they are employees\\nunder Dynamex’s ABC test, and rejected the contention that\\na retroactive application of Dynamex would violate their\\nfederal due process rights.\\n\\n\\n\\n\\n *\\n The Honorable Frederic Block, United States District Judge for the\\nEastern District of New York, sitting by designation.\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 3\\n\\n COUNSEL\\n\\nShannon Liss-Riordan (argued), Lichten & Liss-Riordan\\nP.C., Boston, Massachusetts, for Plaintiffs-Appellants.\\n\\nJeffrey M. Rosin (argued), O’Hagan Meyer PLLC, Boston,\\nMassachusetts; Theodore J. Boutrous Jr., Theane D.\\nEvangelis, and Samuel Eckman, Gibson Dunn & Crutcher\\nLLP, Los Angeles, California; for Defendant-Appellee.\\n\\nCatherine K. Ruckelshaus and Najah A. Farley, National\\nEmployment Law Project, New York, New York, for Amici\\nCuriae National Employment Law Project, Equal Rights\\nAdvocates, Dolores Street Community Services, Legal Aid\\nat Work, and Worksafe, Inc.\\n\\nNorman M. Leon, DLA Piper LLP, Chicago, Illinois;\\nJonathan Solish, Bryan Cave Leighton Paisner LLP, Santa\\nMonica, California; James F. Speyer, Arnold & Porter Kaye\\nScholer LLP, Los Angeles, California; for Amicus Curiae\\nThe International Franchise Association.\\n\\nBradley A. Benbrook and Stephen M. Duvernay, Benbrook\\nLaw Group PC, Sacramento, California; Luke A. Wake,\\nNFIB Small Business Legal Center, Sacramento, California;\\nfor Amicus Curiae National Federation of Independent\\nBusiness Small Business Legal Center.\\n\\nAdam G. Unikowsky, Jenner & Block LLP, Washington,\\nD.C.; Steven P. Lehotsky, U.S. Chamber Litigation Center,\\nWashington, D.C.; for Amicus Curiae Chamber of\\nCommerce of the United States of America.\\n\\f4 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\nJames F. Speyer, Arnold & Porter Kaye Scholer LLP, Los\\nAngeles, California, for Amicus Curiae California Chamber\\nof Commerce.\\n\\nPaul Grossman and Paul W. Cane Jr., Paul Hastings LLP,\\nLos Angeles, California, for Amicus Curiae California\\nEmployment Law Council.\\n\\n\\n OPINION\\n\\nPER CURIAM:\\n\\n We have certified to the California Supreme Court the\\nquestion whether that Court’s decision in Dynamex\\nOperations West Inc. v. Superior Court, 416 P.3d 1 (Cal.\\n2018), applies retroactively. See Vazquez v. Jan-Pro Int’l,\\nInc., __ F.3d __ (9th Cir. 2019). We here re-establish the\\nremaining holdings from our now-withdrawn opinion in the\\nmatter. See Vazquez v. Jan-Pro Int’l, Inc., __ F.3d __, 2019\\nWL 3271969 (9th Cir. July 22, 2019). For the reasons laid\\nout in our earlier opinion, we hold that the doctrines of res\\njudicata and law of the case do not bar Plaintiffs from\\ncontending that they are employees under Dynamex’s ABC\\ntest. See 923 F.3d at 583–86. We likewise reject Jan-Pro’s\\ncontention that a retroactive application of Dynamex would\\nviolate their federal due process rights. See id. at 588–90.\\nFinally, if Dynamex does apply retroactively, the district\\ncourt’s reliance on Patterson v. Domino’s Pizza, LLC,\\n333 P.3d 723 (Cal. 2014), and the “special features of the\\nfranchise relationship” was misplaced. See id. at 594–95. As\\nthese rulings remain in place, the issue certified to the\\nCalifornia Supreme Court “could determine the outcome” of\\nthe remainder of the appeal. Cal. R. Ct. 8.548(a).\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4480,"cells":{"id":{"kind":"number","value":4663718,"string":"4,663,718"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Gerardo Vazquez v. Jan-Pro Franchising Int'l Inc."},"decision_date":{"kind":"string","value":"2019-09-24"},"docket_number":{"kind":"string","value":"17-16096"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block, District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"The Honorable Frederic Block, United States District Judge for the\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n GERARDO VAZQUEZ, GLORIA No. 17-16096\\n ROMAN, and JUAN AGUILAR,\\n on behalf of themselves and D.C. No.\\n all other similarly situated, 3:16-cv-05961-WHA\\n Plaintiffs-Appellants,\\n\\n v. ORDER\\n CERTIFYING\\n JAN-PRO FRANCHISING QUESTION TO THE\\n INTERNATIONAL, INC., CALIFORNIA\\n Defendant-Appellee. SUPREME COURT\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of California\\n William Alsup, District Judge, Presiding\\n\\n Argued and Submitted December 18, 2018\\n San Francisco, California\\n\\n Filed September 24, 2019\\n\\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\\n Judges, and Frederic Block, District Judge. *\\n\\n Order\\n *\\n The Honorable Frederic Block, United States District Judge for the\\nEastern District of New York, sitting by designation.\\n\\f2 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\n SUMMARY **\\n\\n\\n Certified Question to the California Supreme Court\\n\\n The panel certified the following question of state law\\nto the California Supreme Court:\\n\\n Does Dynamex Operations West Inc. v.\\n Superior Court, 416 P.3d 1 (Cal. 2018), apply\\n retroactively?\\n\\n\\n\\n ORDER\\n\\n We ask the California Supreme Court to resolve an open\\nquestion of California state law and certify the following\\nquestion: Does the Court’s decision in Dynamex Operations\\nWest Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018), apply\\nretroactively? Our phrasing of the question should not\\nrestrict the Court’s consideration of the issues involved. The\\nCourt may rephrase the questions as it sees fit in order to\\naddress the contentions of the parties. If the Court agrees to\\ndecide this question, we agree to accept its decision. We\\nrecognize that the Court has a substantial caseload, but we\\nsubmit this question in the interests of comity and because\\nof its significance for California labor law and California\\nbusinesses.\\n\\n\\n\\n\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 3\\n\\n I\\n\\n This case dates back more than a decade. We provide\\nbackground on the parties, their dispute, the procedural\\nhistory of the case, and their contentions on appeal to frame\\nthe question we are certifying.\\n\\n A\\n\\n Defendant-Appellee, Jan-Pro International Franchising,\\nInc. (“Jan-Pro”) is a company headquartered in Georgia. It\\nlicenses a system for marketing cleaning services to\\n“regional master franchisees,” in multiple countries,\\nincluding the United States. Regional master franchisees\\npurchase franchises for exclusive operations in a given\\nregional area.\\n\\n Regional master franchisees, in turn, are franchisors to\\n“unit franchisees.” Regional master franchisors 1 advertise\\ncleaning services within the geographic region covered by\\nthe franchise, provide bids to potential customers, and\\nprocess payments. Unit franchisees are given the option to\\naccept or reject these bids; for any bids they accept, they\\nperform the actual cleaning under the “Jan-Pro” name. Unit\\nfranchisees are also allowed to solicit their own accounts.\\nAfter royalties and other fees are deducted for Jan-Pro and\\nthe regional master franchisor, the balance is remitted to the\\nunit franchisee. Regional master franchisors also offer\\n“business and management services” to unit franchisees,\\nincluding training, “assistance with customer relations”\\n(which includes finding a substitute unit franchisee if a\\nscheduled unit franchisee is unable to fulfill a contract), and\\n\\n 1\\n We refer to the intermediate entities as either “regional master\\nfranchisees” or “regional master franchisors” depending on whether the\\nfocus is on their relationships with Jan-Pro or with the unit franchisees.\\n\\f4 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\ninvoicing. Some regional master franchisors provide\\ncleaning supplies to their unit franchisees.\\n\\n Jan-Pro is not party to any contract with unit franchisees.\\nJan-Pro contracts with the master franchisors, who then\\ncontract with unit franchisees. Unit franchisees may hire\\ntheir own employees and may act in individual or corporate\\ncapacities.\\n\\n Plaintiffs-Appellants (“Plaintiffs”) are former unit\\nfranchisees who purchased their franchises from two\\ndifferent regional master franchisors. Gerardo Vazquez\\npurchased his franchise from master franchisor New Venture\\nof San Bernardino, LLC for $2,800; Gloria Roman bought\\nhers from Connor-Nolan, Inc. for $2,800; and Juan Aguilar,\\nwith a business partner, acquired his from Connor-Nolan,\\nInc. for $9,000. See Roman v. Jan-Pro Franchising Int’l,\\nInc., No. 16-cv-05961, 2017 WL 2265447, at *1 (N.D. Cal.\\nMay 24, 2017).\\n\\n B\\n\\n This case began in 2008 when three other former Jan-Pro\\nunit franchisees (not Plaintiffs) filed a putative class action\\nin the District Court for the District of Massachusetts. By\\nthe end of the year, there were eight additional plaintiffs,\\nincluding the Plaintiffs here, who are California residents.\\nTogether, they alleged that Jan-Pro had developed a\\nsophisticated “three-tier” franchising model to misclassify\\nits janitors as independent contractors and avoid paying\\nminimum wages and overtime compensation.\\n\\n Because of the variety of state laws involved, the\\nMassachusetts district court chose a test case and, over Jan-\\nPro’s objection, severed Plaintiffs’ cases and sent them to\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 5\\n\\nthe Northern District of California, Plaintiffs’ place of\\nresidence.\\n\\n C\\n\\n Eventually, Jan-Pro moved for summary judgment in\\nthis case. Jan-Pro contended that the California Supreme\\nCourt’s decision in Patterson v. Domino’s Pizza, LLC—a\\ncase concerning the vicarious liability of a franchisor for a\\nsexual assault against an employee of its franchisee,\\n333 P.3d 723 (Cal. 2014)—provided the relevant standard\\nfor determining whether Plaintiffs should be considered\\nemployees of Jan-Pro. See Roman, 2017 WL 2265447,\\nat *2. Plaintiffs, in turn, contended that Martinez v. Combs,\\n231 P.3d 259 (Cal. 2010), provided the standard because this\\nis a wage and hour case. Roman, 2017 WL 2265447, at *2.\\nIn Martinez, the California Supreme Court held that “to\\nemploy,” as used in California wage orders, means “(a) to\\nexercise control over the wages, hours or working\\nconditions, or (b) to suffer or permit to work, or (c) to\\nengage, thereby creating a common law employment\\nrelationship.” Martinez, 231 P.3d at 278.\\n\\n The district court recognized that “no binding decision\\nha[d] addressed the standard applicable to determining\\nwhether a franchisor is an employer of a franchisee,” and “in\\nthe absence of controlling authority” it applied “the Martinez\\nstandard, with the gloss of Patterson.” Roman, 2017 WL\\n2265447, at *3. Analyzing Martinez’s three prongs, the\\ndistrict court held that Plaintiffs had not established a\\ngenuine issue of material fact as to whether they were\\nemployees under any of the three prongs, and the court\\ngranted summary judgment to Jan-Pro. Id. at *5–6.\\n\\n Plaintiffs filed a timely notice of appeal.\\n\\f6 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\n D\\n\\n While this appeal was pending and after briefing was\\ncompleted, the California Supreme Court decided Dynamex.\\nDynamex turned on the definition of “suffer or permit”—i.e.,\\nMartinez’s second prong—for California wage order cases.\\nSpecifically, Dynamex held that a “hiring entity” (a putative\\nemployer) “suffers or permits” a putative employee to work\\nif it cannot overcome the “ABC test.” 416 P.3d at 35. A\\nhiring entity must establish three elements to disprove\\nemployment status: (A) that the worker is free from the\\ncontrol and direction of the hiring entity in connection with\\nthe performance of the work, both under the contract for the\\nperformance of the work and in fact; (B) that the worker\\nperforms work that is outside the usual course of the hiring\\nentity’s business; and (C) that the worker is customarily\\nengaged in an independently established trade, occupation,\\nor business of the same nature as the work performed. Id.\\nat 35.\\n\\n E\\n\\n Because Dynamex postdated the district court’s decision,\\nwe issued an order directing the parties to brief its effect on\\nthe merits of this case. Among other contentions, the parties\\ndisputed whether the decision applies retroactively.\\n\\n On May 2, 2019, we issued a published opinion holding,\\ninter alia, that Dynamex applies retroactively. See 923 F.3d\\n575. On petition for panel rehearing, however, we decided\\nto certify the retroactivity question to the California Supreme\\nCourt. We therefore issued an order withdrawing our prior\\nopinion. See Vazquez v. Jan-Pro Int’l, Inc., __ F.3d __, 2019\\nWL 3271969 (9th Cir. July 22, 2019).\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 7\\n\\n II\\n\\n “We invoke the certification process only after careful\\nconsideration and do not do so lightly.” Kremen v. Cohen,\\n325 F.3d 1035, 1037 (9th Cir. 2003). “In deciding whether\\nto exercise our discretion, we consider: (1) whether the\\nquestion presents ‘important public policy ramifications’ yet\\nunresolved by the state court; (2) whether the issue is new,\\nsubstantial, and of broad application; (3) the state court’s\\ncaseload; and (4) ‘the spirit of comity and federalism.’”\\nMurray v. BEJ Minerals, LLC, 924 F.3d 1070, 1072 (9th Cir.\\n2019) (en banc) (quoting Kremen, 325 F.3d at 1037–38).\\nHere, we conclude that it is prudent to certify the question of\\nDynamex’s retroactivity to the California Supreme Court.\\nWe do so for two reasons.\\n\\n First, in our now-withdrawn opinion, we rejected Jan-\\nPro’s argument that the doctrines of res judicata and law of\\nthe case bar Plaintiffs from contending that they are\\nemployees under the ABC test. See 923 F.3d at 583–86. We\\nlikewise rejected their contention that a retroactive\\napplication would violate their federal due process rights.\\nSee id. at 588–90. Finally, we held that if Dynamex does\\napply, the district court’s reliance on Patterson and the\\n“special features of the franchise relationship” was\\nmisplaced. See id. at 594–95. We continue to adhere to\\nthose conclusions and incorporate them here by reference.\\nSee Vazquez v. Jan-Pro Int’l, Inc., __ F.3d __ (9th Cir.\\n2019). Accordingly, the question of whether Dynamex\\napplies retroactively “could determine the outcome” of this\\nappeal. Cal. R. Ct. 8.548(a).\\n\\n Second, in resolving the parties’ competing contentions,\\nour task, as a federal court sitting in diversity, is “to\\napproximate state law as closely as possible in order to make\\nsure that the vindication of the state right is without\\n\\f8 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\ndiscrimination because of the federal forum.” Murray,\\n924 F.3d at 1071 (quoting Ticknor v. Choice Hotels Int’l,\\nInc., 265 F.3d 931, 939 (9th Cir. 2001)). If a state’s highest\\ncourt has not spoken on an issue, “then we must predict how\\nthe state’s highest court would decide” the issue. Id. Or, “if\\nstate law permits it, we may exercise our discretion to certify\\na question to the state’s highest court.” Id. The question of\\nDynamex’s retroactive application has potentially broad\\nramifications for those who have been doing business in\\nCalifornia, but the question has not been answered by the\\nCalifornia Supreme Court. See Cal. R. Ct. 8.548(a)(2). 2 As\\ndiscussed, Dynamex enunciated anew a test for analyzing\\nwhether a worker is an employee under California wage\\norders. According to Jan-Pro and amici, that test, if it applies\\nretroactively, could lead to substantially greater liability for\\nCalifornia businesses, for conduct that occurred before\\nDynamex, than the pre-Dynamex legal regime. In particular,\\nthe decision could lead to greater liability in economic\\nsectors that rely more heavily on independent contractors.\\nFranchising is one such sector, and it is large. There are\\nmore than 77,000 franchise establishments employing over\\n755,000 people in California. IHS Markit Economics,\\nFranchise Business Economic Outlook for 2018 at 28\\n(2018), https://www.franchise.org/sites/default/files/Franch\\nise_Business_Outlook_Jan_2018.pdf. Others potentially\\naffected are small businesses and their employees, as well as\\nworkers in the gig economy. Given the potential importance\\nof the retroactivity issue to California businesses and\\nworkers, and because the question is unsettled, “‘[c]omity\\nand federalism counsel that the California Supreme Court,\\n\\n 2\\n We note, however, that the Court did deny without comment a\\npetition by the California Employment Law Council, an amicus, to\\nmodify the Dynamex decision to apply prospectively-only. The ABC\\ntest will thus be applied retrospectively in Dynamex itself.\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 9\\n\\nrather than this court, should answer’ the certified question.”\\nRobinson v. Lewis, 795 F.3d 926, 928 (9th Cir. 2015)\\n(quoting Munson v. Del Taco, Inc., 522 F.3d 997, 999 (9th\\nCir. 2008)); see also Murray, 924 F.3d at 1072.\\n\\n In asking the California Supreme Court to resolve this\\nquestion, we respectfully direct it to our own analysis in the\\nwithdrawn opinion to the extent that the Court may find it\\nhelpful. See 923 F.3d at 586–88. We also respectfully direct\\nit to the voluminous briefs of the parties and amici. To that\\nend, we GRANT Plaintiffs’ motion to take judicial notice of\\na hearing transcript in Juarez v. Jani-King of Cal., Inc., No.\\n4:09-cv-03495, Dkt. No. 240 (N.D. Cal. Dec. 14, 2018), in\\nwhich Judge Yvonne Gonzalez-Rodgers reasoned that\\nDynamex applies retroactively (Dkt. No. 111). We likewise\\nGRANT the California Employment Law Council’s motion\\nto file an amicus brief (Dkt. No. 97).\\n\\n ***\\n\\n In light of the foregoing, we ask the California Supreme\\nCourt to answer the following question: Does Dynamex\\nOperations West Inc. v. Superior Court, 416 P.3d 1 (Cal.\\n2018), apply retroactively?\\n\\n III\\n\\n We provide the following information as required by\\nCalifornia Rule of Court 8.548(b)(1).\\n\\n The title of this case is GERARDO VAZQUEZ,\\nGLORIA ROMAN, and JUAN AGUILAR, Plaintiffs-\\nAppellants v. JAN-PRO FRANCHISING\\nINTERNATIONAL, INC., Defendant-Appellee.\\n\\n The case number in our court is 17-16096.\\n\\f10 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\n Plaintiffs-Appellants Gerardo Vazquez, Gloria Roman,\\nand Juan Aguilar are represented by the following counsel:\\n\\n Shannon Liss-Riordan\\n Lichten & Liss-Riordan, P.C.\\n 729 Boylston Street, Suite 2000\\n Boston, MA 02116\\n\\n Defendant-Appellee Jan-Pro Franchising International,\\nInc. is represented by the following counsel:\\n\\n Theodore J. Boutrous, Jr., Samuel Eckman, and Theane\\n Evangelis\\n Gibson, Dunn & Crutcher LLP\\n 333 South Grand Avenue\\n Los Angeles, CA 90071-3197\\n\\n Jeffrey Mark Rosin\\n O’Hagan Meyer, PLLC\\n 111 Huntington Avenue, Suite 2860\\n Boston, MA 02199\\n\\n We designate Gerardo Vazquez, Gloria Roman, and Juan\\nAguilar as the petitioners if our request for a decision is\\ngranted, as they are the appellants before our court.\\n\\n The Clerk of Court is hereby directed to transmit\\nforthwith to the California Supreme Court, under official\\nseal of the Ninth Circuit, a copy of this order and request for\\ncertification and all relevant briefs and excerpts of record\\npursuant to California Rule of Court 8.548. Submission of\\nthis case is withdrawn, and the case will be resubmitted\\nfollowing receipt of the California Supreme Court’s opinion\\non the certified question or notification that it declines to\\nanswer the certified question. The Clerk shall\\nadministratively close this docket pending a ruling by the\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 11\\n\\nCalifornia Supreme Court regarding the certified question.\\nThe panel shall retain jurisdiction over further proceedings\\nin this court. The parties shall notify the Clerk of this court\\nwithin one week after the California Supreme Court accepts\\nor rejects certification. In the event the California Supreme\\nCourt grants certification, the parties shall notify the Clerk\\nwithin one week after the Court renders its opinion.\\n\\n CERTIFICATION REQUESTED; SUBMISSION\\nVACATED.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4440971/\", \"author_raw\": \"The Honorable Frederic Block, United States District Judge for the\"}]}"},"judge1":{"kind":"string","value":"RONALD M GOULD"},"judge2":{"kind":"string","value":"MARSHA S BERZON"},"judge3":{"kind":"string","value":"FREDERIC BLOCK"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4663718/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Gerardo Vazquez v. Jan-Pro Franchising Int'l Inc.\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n GERARDO VAZQUEZ, GLORIA No. 17-16096\n ROMAN, and JUAN AGUILAR,\n on behalf of themselves and D.C. No.\n all other similarly situated, 3:16-cv-05961-WHA\n Plaintiffs-Appellants,\n\n v. ORDER\n CERTIFYING\n JAN-PRO FRANCHISING QUESTION TO THE\n INTERNATIONAL, INC., CALIFORNIA\n Defendant-Appellee. SUPREME COURT\n\n\n Appeal from the United States District Court\n for the Northern District of California\n William Alsup, District Judge, Presiding\n\n Argued and Submitted December 18, 2018\n San Francisco, California\n\n Filed September 24, 2019\n\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\n Judges, and Frederic Block, District Judge. *\n\n Order\n *\n The Honorable Frederic Block, United States District Judge for the\nEastern District of New York, sitting by designation.\n\f2 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\n\n SUMMARY **\n\n\n Certified Question to the California Supreme Court\n\n The panel certified the following question of state law\nto the California Supreme Court:\n\n Does Dynamex Operations West Inc. v.\n Superior Court, 416 P.3d 1 (Cal. 2018), apply\n retroactively?\n\n\n\n ORDER\n\n We ask the California Supreme Court to resolve an open\nquestion of California state law and certify the following\nquestion: Does the Court’s decision in Dynamex Operations\nWest Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018), apply\nretroactively? Our phrasing of the question should not\nrestrict the Court’s consideration of the issues involved. The\nCourt may rephrase the questions as it sees fit in order to\naddress the contentions of the parties. If the Court agrees to\ndecide this question, we agree to accept its decision. We\nrecognize that the Court has a substantial caseload, but we\nsubmit this question in the interests of comity and because\nof its significance for California labor law and California\nbusinesses.\n\n\n\n\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 3\n\n I\n\n This case dates back more than a decade. We provide\nbackground on the parties, their dispute, the procedural\nhistory of the case, and their contentions on appeal to frame\nthe question we are certifying.\n\n A\n\n Defendant-Appellee, Jan-Pro International Franchising,\nInc. (“Jan-Pro”) is a company headquartered in Georgia. It\nlicenses a system for marketing cleaning services to\n“regional master franchisees,” in multiple countries,\nincluding the United States. Regional master franchisees\npurchase franchises for exclusive operations in a given\nregional area.\n\n Regional master franchisees, in turn, are franchisors to\n“unit franchisees.” Regional master franchisors 1 advertise\ncleaning services within the geographic region covered by\nthe franchise, provide bids to potential customers, and\nprocess payments. Unit franchisees are given the option to\naccept or reject these bids; for any bids they accept, they\nperform the actual cleaning under the “Jan-Pro” name. Unit\nfranchisees are also allowed to solicit their own accounts.\nAfter royalties and other fees are deducted for Jan-Pro and\nthe regional master franchisor, the balance is remitted to the\nunit franchisee. Regional master franchisors also offer\n“business and management services” to unit franchisees,\nincluding training, “assistance with customer relations”\n(which includes finding a substitute unit franchisee if a\nscheduled unit franchisee is unable to fulfill a contract), and\n\n 1\n We refer to the intermediate entities as either “regional master\nfranchisees” or “regional master franchisors” depending on whether the\nfocus is on their relationships with Jan-Pro or with the unit franchisees.\n\f4 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\n\ninvoicing. Some regional master franchisors provide\ncleaning supplies to their unit franchisees.\n\n Jan-Pro is not party to any contract with unit franchisees.\nJan-Pro contracts with the master franchisors, who then\ncontract with unit franchisees. Unit franchisees may hire\ntheir own employees and may act in individual or corporate\ncapacities.\n\n Plaintiffs-Appellants (“Plaintiffs”) are former unit\nfranchisees who purchased their franchises from two\ndifferent regional master franchisors. Gerardo Vazquez\npurchased his franchise from master franchisor New Venture\nof San Bernardino, LLC for $2,800; Gloria Roman bought\nhers from Connor-Nolan, Inc. for $2,800; and Juan Aguilar,\nwith a business partner, acquired his from Connor-Nolan,\nInc. for $9,000. See Roman v. Jan-Pro Franchising Int’l,\nInc., No. 16-cv-05961, 2017 WL 2265447, at *1 (N.D. Cal.\nMay 24, 2017).\n\n B\n\n This case began in 2008 when three other former Jan-Pro\nunit franchisees (not Plaintiffs) filed a putative class action\nin the District Court for the District of Massachusetts. By\nthe end of the year, there were eight additional plaintiffs,\nincluding the Plaintiffs here, who are California residents.\nTogether, they alleged that Jan-Pro had developed a\nsophisticated “three-tier” franchising model to misclassify\nits janitors as independent contractors and avoid paying\nminimum wages and overtime compensation.\n\n Because of the variety of state laws involved, the\nMassachusetts district court chose a test case and, over Jan-\nPro’s objection, severed Plaintiffs’ cases and sent them to\n\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 5\n\nthe Northern District of California, Plaintiffs’ place of\nresidence.\n\n C\n\n Eventually, Jan-Pro moved for summary judgment in\nthis case. Jan-Pro contended that the California Supreme\nCourt’s decision in Patterson v. Domino’s Pizza, LLC—a\ncase concerning the vicarious liability of a franchisor for a\nsexual assault against an employee of its franchisee,\n333 P.3d 723 (Cal. 2014)—provided the relevant standard\nfor determining whether Plaintiffs should be considered\nemployees of Jan-Pro. See Roman, 2017 WL 2265447,\nat *2. Plaintiffs, in turn, contended that Martinez v. Combs,\n231 P.3d 259 (Cal. 2010), provided the standard because this\nis a wage and hour case. Roman, 2017 WL 2265447, at *2.\nIn Martinez, the California Supreme Court held that “to\nemploy,” as used in California wage orders, means “(a) to\nexercise control over the wages, hours or working\nconditions, or (b) to suffer or permit to work, or (c) to\nengage, thereby creating a common law employment\nrelationship.” Martinez, 231 P.3d at 278.\n\n The district court recognized that “no binding decision\nha[d] addressed the standard applicable to determining\nwhether a franchisor is an employer of a franchisee,” and “in\nthe absence of controlling authority” it applied “the Martinez\nstandard, with the gloss of Patterson.” Roman, 2017 WL\n2265447, at *3. Analyzing Martinez’s three prongs, the\ndistrict court held that Plaintiffs had not established a\ngenuine issue of material fact as to whether they were\nemployees under any of the three prongs, and the court\ngranted summary judgment to Jan-Pro. Id. at *5–6.\n\n Plaintiffs filed a timely notice of appeal.\n\f6 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\n\n D\n\n While this appeal was pending and after briefing was\ncompleted, the California Supreme Court decided Dynamex.\nDynamex turned on the definition of “suffer or permit”—i.e.,\nMartinez’s second prong—for California wage order cases.\nSpecifically, Dynamex held that a “hiring entity” (a putative\nemployer) “suffers or permits” a putative employee to work\nif it cannot overcome the “ABC test.” 416 P.3d at 35. A\nhiring entity must establish three elements to disprove\nemployment status: (A) that the worker is free from the\ncontrol and direction of the hiring entity in connection with\nthe performance of the work, both under the contract for the\nperformance of the work and in fact; (B) that the worker\nperforms work that is outside the usual course of the hiring\nentity’s business; and (C) that the worker is customarily\nengaged in an independently established trade, occupation,\nor business of the same nature as the work performed. Id.\nat 35.\n\n E\n\n Because Dynamex postdated the district court’s decision,\nwe issued an order directing the parties to brief its effect on\nthe merits of this case. Among other contentions, the parties\ndisputed whether the decision applies retroactively.\n\n On May 2, 2019, we issued a published opinion holding,\ninter alia, that Dynamex applies retroactively. See 923 F.3d\n575. On petition for panel rehearing, however, we decided\nto certify the retroactivity question to the California Supreme\nCourt. We therefore issued an order withdrawing our prior\nopinion. See Vazquez v. Jan-Pro Int’l, Inc., __ F.3d __, 2019\nWL 3271969 (9th Cir. July 22, 2019).\n\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 7\n\n II\n\n “We invoke the certification process only after careful\nconsideration and do not do so lightly.” Kremen v. Cohen,\n325 F.3d 1035, 1037 (9th Cir. 2003). “In deciding whether\nto exercise our discretion, we consider: (1) whether the\nquestion presents ‘important public policy ramifications’ yet\nunresolved by the state court; (2) whether the issue is new,\nsubstantial, and of broad application; (3) the state court’s\ncaseload; and (4) ‘the spirit of comity and federalism.’”\nMurray v. BEJ Minerals, LLC, 924 F.3d 1070, 1072 (9th Cir.\n2019) (en banc) (quoting Kremen, 325 F.3d at 1037–38).\nHere, we conclude that it is prudent to certify the question of\nDynamex’s retroactivity to the California Supreme Court.\nWe do so for two reasons.\n\n First, in our now-withdrawn opinion, we rejected Jan-\nPro’s argument that the doctrines of res judicata and law of\nthe case bar Plaintiffs from contending that they are\nemployees under the ABC test. See 923 F.3d at 583–86. We\nlikewise rejected their contention that a retroactive\napplication would violate their federal due process rights.\nSee id. at 588–90. Finally, we held that if Dynamex does\napply, the district court’s reliance on Patterson and the\n“special features of the franchise relationship” was\nmisplaced. See id. at 594–95. We continue to adhere to\nthose conclusions and incorporate them here by reference.\nSee Vazquez v. Jan-Pro Int’l, Inc., __ F.3d __ (9th Cir.\n2019). Accordingly, the question of whether Dynamex\napplies retroactively “could determine the outcome” of this\nappeal. Cal. R. Ct. 8.548(a).\n\n Second, in resolving the parties’ competing contentions,\nour task, as a federal court sitting in diversity, is “to\napproximate state law as closely as possible in order to make\nsure that the vindication of the state right is without\n\f8 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\n\ndiscrimination because of the federal forum.” Murray,\n924 F.3d at 1071 (quoting Ticknor v. Choice Hotels Int’l,\nInc., 265 F.3d 931, 939 (9th Cir. 2001)). If a state’s highest\ncourt has not spoken on an issue, “then we must predict how\nthe state’s highest court would decide” the issue. Id. Or, “if\nstate law permits it, we may exercise our discretion to certify\na question to the state’s highest court.” Id. The question of\nDynamex’s retroactive application has potentially broad\nramifications for those who have been doing business in\nCalifornia, but the question has not been answered by the\nCalifornia Supreme Court. See Cal. R. Ct. 8.548(a)(2). 2 As\ndiscussed, Dynamex enunciated anew a test for analyzing\nwhether a worker is an employee under California wage\norders. According to Jan-Pro and amici, that test, if it applies\nretroactively, could lead to substantially greater liability for\nCalifornia businesses, for conduct that occurred before\nDynamex, than the pre-Dynamex legal regime. In particular,\nthe decision could lead to greater liability in economic\nsectors that rely more heavily on independent contractors.\nFranchising is one such sector, and it is large. There are\nmore than 77,000 franchise establishments employing over\n755,000 people in California. IHS Markit Economics,\nFranchise Business Economic Outlook for 2018 at 28\n(2018), https://www.franchise.org/sites/default/files/Franch\nise_Business_Outlook_Jan_2018.pdf. Others potentially\naffected are small businesses and their employees, as well as\nworkers in the gig economy. Given the potential importance\nof the retroactivity issue to California businesses and\nworkers, and because the question is unsettled, “‘[c]omity\nand federalism counsel that the California Supreme Court,\n\n 2\n We note, however, that the Court did deny without comment a\npetition by the California Employment Law Council, an amicus, to\nmodify the Dynamex decision to apply prospectively-only. The ABC\ntest will thus be applied retrospectively in Dynamex itself.\n\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 9\n\nrather than this court, should answer’ the certified question.”\nRobinson v. Lewis, 795 F.3d 926, 928 (9th Cir. 2015)\n(quoting Munson v. Del Taco, Inc., 522 F.3d 997, 999 (9th\nCir. 2008)); see also Murray, 924 F.3d at 1072.\n\n In asking the California Supreme Court to resolve this\nquestion, we respectfully direct it to our own analysis in the\nwithdrawn opinion to the extent that the Court may find it\nhelpful. See 923 F.3d at 586–88. We also respectfully direct\nit to the voluminous briefs of the parties and amici. To that\nend, we GRANT Plaintiffs’ motion to take judicial notice of\na hearing transcript in Juarez v. Jani-King of Cal., Inc., No.\n4:09-cv-03495, Dkt. No. 240 (N.D. Cal. Dec. 14, 2018), in\nwhich Judge Yvonne Gonzalez-Rodgers reasoned that\nDynamex applies retroactively (Dkt. No. 111). We likewise\nGRANT the California Employment Law Council’s motion\nto file an amicus brief (Dkt. No. 97).\n\n ***\n\n In light of the foregoing, we ask the California Supreme\nCourt to answer the following question: Does Dynamex\nOperations West Inc. v. Superior Court, 416 P.3d 1 (Cal.\n2018), apply retroactively?\n\n III\n\n We provide the following information as required by\nCalifornia Rule of Court 8.548(b)(1).\n\n The title of this case is GERARDO VAZQUEZ,\nGLORIA ROMAN, and JUAN AGUILAR, Plaintiffs-\nAppellants v. JAN-PRO FRANCHISING\nINTERNATIONAL, INC., Defendant-Appellee.\n\n The case number in our court is 17-16096.\n\f10 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\n\n Plaintiffs-Appellants Gerardo Vazquez, Gloria Roman,\nand Juan Aguilar are represented by the following counsel:\n\n Shannon Liss-Riordan\n Lichten & Liss-Riordan, P.C.\n 729 Boylston Street, Suite 2000\n Boston, MA 02116\n\n Defendant-Appellee Jan-Pro Franchising International,\nInc. is represented by the following counsel:\n\n Theodore J. Boutrous, Jr., Samuel Eckman, and Theane\n Evangelis\n Gibson, Dunn & Crutcher LLP\n 333 South Grand Avenue\n Los Angeles, CA 90071-3197\n\n Jeffrey Mark Rosin\n O’Hagan Meyer, PLLC\n 111 Huntington Avenue, Suite 2860\n Boston, MA 02199\n\n We designate Gerardo Vazquez, Gloria Roman, and Juan\nAguilar as the petitioners if our request for a decision is\ngranted, as they are the appellants before our court.\n\n The Clerk of Court is hereby directed to transmit\nforthwith to the California Supreme Court, under official\nseal of the Ninth Circuit, a copy of this order and request for\ncertification and all relevant briefs and excerpts of record\npursuant to California Rule of Court 8.548. Submission of\nthis case is withdrawn, and the case will be resubmitted\nfollowing receipt of the California Supreme Court’s opinion\non the certified question or notification that it declines to\nanswer the certified question. The Clerk shall\nadministratively close this docket pending a ruling by the\n\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 11\n\nCalifornia Supreme Court regarding the certified question.\nThe panel shall retain jurisdiction over further proceedings\nin this court. The parties shall notify the Clerk of this court\nwithin one week after the California Supreme Court accepts\nor rejects certification. In the event the California Supreme\nCourt grants certification, the parties shall notify the Clerk\nwithin one week after the Court renders its opinion.\n\n CERTIFICATION REQUESTED; SUBMISSION\nVACATED.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Gerardo Vazquez v. Jan-Pro Franchising Int'l Inc.\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-24\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n GERARDO VAZQUEZ, GLORIA No. 17-16096\\n ROMAN, and JUAN AGUILAR,\\n on behalf of themselves and D.C. No.\\n all other similarly situated, 3:16-cv-05961-WHA\\n Plaintiffs-Appellants,\\n\\n v. ORDER\\n CERTIFYING\\n JAN-PRO FRANCHISING QUESTION TO THE\\n INTERNATIONAL, INC., CALIFORNIA\\n Defendant-Appellee. SUPREME COURT\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of California\\n William Alsup, District Judge, Presiding\\n\\n Argued and Submitted December 18, 2018\\n San Francisco, California\\n\\n Filed September 24, 2019\\n\\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\\n Judges, and Frederic Block, District Judge. *\\n\\n Order\\n *\\n The Honorable Frederic Block, United States District Judge for the\\nEastern District of New York, sitting by designation.\\n\\f2 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\n SUMMARY **\\n\\n\\n Certified Question to the California Supreme Court\\n\\n The panel certified the following question of state law\\nto the California Supreme Court:\\n\\n Does Dynamex Operations West Inc. v.\\n Superior Court, 416 P.3d 1 (Cal. 2018), apply\\n retroactively?\\n\\n\\n\\n ORDER\\n\\n We ask the California Supreme Court to resolve an open\\nquestion of California state law and certify the following\\nquestion: Does the Court’s decision in Dynamex Operations\\nWest Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018), apply\\nretroactively? Our phrasing of the question should not\\nrestrict the Court’s consideration of the issues involved. The\\nCourt may rephrase the questions as it sees fit in order to\\naddress the contentions of the parties. If the Court agrees to\\ndecide this question, we agree to accept its decision. We\\nrecognize that the Court has a substantial caseload, but we\\nsubmit this question in the interests of comity and because\\nof its significance for California labor law and California\\nbusinesses.\\n\\n\\n\\n\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 3\\n\\n I\\n\\n This case dates back more than a decade. We provide\\nbackground on the parties, their dispute, the procedural\\nhistory of the case, and their contentions on appeal to frame\\nthe question we are certifying.\\n\\n A\\n\\n Defendant-Appellee, Jan-Pro International Franchising,\\nInc. (“Jan-Pro”) is a company headquartered in Georgia. It\\nlicenses a system for marketing cleaning services to\\n“regional master franchisees,” in multiple countries,\\nincluding the United States. Regional master franchisees\\npurchase franchises for exclusive operations in a given\\nregional area.\\n\\n Regional master franchisees, in turn, are franchisors to\\n“unit franchisees.” Regional master franchisors 1 advertise\\ncleaning services within the geographic region covered by\\nthe franchise, provide bids to potential customers, and\\nprocess payments. Unit franchisees are given the option to\\naccept or reject these bids; for any bids they accept, they\\nperform the actual cleaning under the “Jan-Pro” name. Unit\\nfranchisees are also allowed to solicit their own accounts.\\nAfter royalties and other fees are deducted for Jan-Pro and\\nthe regional master franchisor, the balance is remitted to the\\nunit franchisee. Regional master franchisors also offer\\n“business and management services” to unit franchisees,\\nincluding training, “assistance with customer relations”\\n(which includes finding a substitute unit franchisee if a\\nscheduled unit franchisee is unable to fulfill a contract), and\\n\\n 1\\n We refer to the intermediate entities as either “regional master\\nfranchisees” or “regional master franchisors” depending on whether the\\nfocus is on their relationships with Jan-Pro or with the unit franchisees.\\n\\f4 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\ninvoicing. Some regional master franchisors provide\\ncleaning supplies to their unit franchisees.\\n\\n Jan-Pro is not party to any contract with unit franchisees.\\nJan-Pro contracts with the master franchisors, who then\\ncontract with unit franchisees. Unit franchisees may hire\\ntheir own employees and may act in individual or corporate\\ncapacities.\\n\\n Plaintiffs-Appellants (“Plaintiffs”) are former unit\\nfranchisees who purchased their franchises from two\\ndifferent regional master franchisors. Gerardo Vazquez\\npurchased his franchise from master franchisor New Venture\\nof San Bernardino, LLC for $2,800; Gloria Roman bought\\nhers from Connor-Nolan, Inc. for $2,800; and Juan Aguilar,\\nwith a business partner, acquired his from Connor-Nolan,\\nInc. for $9,000. See Roman v. Jan-Pro Franchising Int’l,\\nInc., No. 16-cv-05961, 2017 WL 2265447, at *1 (N.D. Cal.\\nMay 24, 2017).\\n\\n B\\n\\n This case began in 2008 when three other former Jan-Pro\\nunit franchisees (not Plaintiffs) filed a putative class action\\nin the District Court for the District of Massachusetts. By\\nthe end of the year, there were eight additional plaintiffs,\\nincluding the Plaintiffs here, who are California residents.\\nTogether, they alleged that Jan-Pro had developed a\\nsophisticated “three-tier” franchising model to misclassify\\nits janitors as independent contractors and avoid paying\\nminimum wages and overtime compensation.\\n\\n Because of the variety of state laws involved, the\\nMassachusetts district court chose a test case and, over Jan-\\nPro’s objection, severed Plaintiffs’ cases and sent them to\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 5\\n\\nthe Northern District of California, Plaintiffs’ place of\\nresidence.\\n\\n C\\n\\n Eventually, Jan-Pro moved for summary judgment in\\nthis case. Jan-Pro contended that the California Supreme\\nCourt’s decision in Patterson v. Domino’s Pizza, LLC—a\\ncase concerning the vicarious liability of a franchisor for a\\nsexual assault against an employee of its franchisee,\\n333 P.3d 723 (Cal. 2014)—provided the relevant standard\\nfor determining whether Plaintiffs should be considered\\nemployees of Jan-Pro. See Roman, 2017 WL 2265447,\\nat *2. Plaintiffs, in turn, contended that Martinez v. Combs,\\n231 P.3d 259 (Cal. 2010), provided the standard because this\\nis a wage and hour case. Roman, 2017 WL 2265447, at *2.\\nIn Martinez, the California Supreme Court held that “to\\nemploy,” as used in California wage orders, means “(a) to\\nexercise control over the wages, hours or working\\nconditions, or (b) to suffer or permit to work, or (c) to\\nengage, thereby creating a common law employment\\nrelationship.” Martinez, 231 P.3d at 278.\\n\\n The district court recognized that “no binding decision\\nha[d] addressed the standard applicable to determining\\nwhether a franchisor is an employer of a franchisee,” and “in\\nthe absence of controlling authority” it applied “the Martinez\\nstandard, with the gloss of Patterson.” Roman, 2017 WL\\n2265447, at *3. Analyzing Martinez’s three prongs, the\\ndistrict court held that Plaintiffs had not established a\\ngenuine issue of material fact as to whether they were\\nemployees under any of the three prongs, and the court\\ngranted summary judgment to Jan-Pro. Id. at *5–6.\\n\\n Plaintiffs filed a timely notice of appeal.\\n\\f6 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\n D\\n\\n While this appeal was pending and after briefing was\\ncompleted, the California Supreme Court decided Dynamex.\\nDynamex turned on the definition of “suffer or permit”—i.e.,\\nMartinez’s second prong—for California wage order cases.\\nSpecifically, Dynamex held that a “hiring entity” (a putative\\nemployer) “suffers or permits” a putative employee to work\\nif it cannot overcome the “ABC test.” 416 P.3d at 35. A\\nhiring entity must establish three elements to disprove\\nemployment status: (A) that the worker is free from the\\ncontrol and direction of the hiring entity in connection with\\nthe performance of the work, both under the contract for the\\nperformance of the work and in fact; (B) that the worker\\nperforms work that is outside the usual course of the hiring\\nentity’s business; and (C) that the worker is customarily\\nengaged in an independently established trade, occupation,\\nor business of the same nature as the work performed. Id.\\nat 35.\\n\\n E\\n\\n Because Dynamex postdated the district court’s decision,\\nwe issued an order directing the parties to brief its effect on\\nthe merits of this case. Among other contentions, the parties\\ndisputed whether the decision applies retroactively.\\n\\n On May 2, 2019, we issued a published opinion holding,\\ninter alia, that Dynamex applies retroactively. See 923 F.3d\\n575. On petition for panel rehearing, however, we decided\\nto certify the retroactivity question to the California Supreme\\nCourt. We therefore issued an order withdrawing our prior\\nopinion. See Vazquez v. Jan-Pro Int’l, Inc., __ F.3d __, 2019\\nWL 3271969 (9th Cir. July 22, 2019).\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 7\\n\\n II\\n\\n “We invoke the certification process only after careful\\nconsideration and do not do so lightly.” Kremen v. Cohen,\\n325 F.3d 1035, 1037 (9th Cir. 2003). “In deciding whether\\nto exercise our discretion, we consider: (1) whether the\\nquestion presents ‘important public policy ramifications’ yet\\nunresolved by the state court; (2) whether the issue is new,\\nsubstantial, and of broad application; (3) the state court’s\\ncaseload; and (4) ‘the spirit of comity and federalism.’”\\nMurray v. BEJ Minerals, LLC, 924 F.3d 1070, 1072 (9th Cir.\\n2019) (en banc) (quoting Kremen, 325 F.3d at 1037–38).\\nHere, we conclude that it is prudent to certify the question of\\nDynamex’s retroactivity to the California Supreme Court.\\nWe do so for two reasons.\\n\\n First, in our now-withdrawn opinion, we rejected Jan-\\nPro’s argument that the doctrines of res judicata and law of\\nthe case bar Plaintiffs from contending that they are\\nemployees under the ABC test. See 923 F.3d at 583–86. We\\nlikewise rejected their contention that a retroactive\\napplication would violate their federal due process rights.\\nSee id. at 588–90. Finally, we held that if Dynamex does\\napply, the district court’s reliance on Patterson and the\\n“special features of the franchise relationship” was\\nmisplaced. See id. at 594–95. We continue to adhere to\\nthose conclusions and incorporate them here by reference.\\nSee Vazquez v. Jan-Pro Int’l, Inc., __ F.3d __ (9th Cir.\\n2019). Accordingly, the question of whether Dynamex\\napplies retroactively “could determine the outcome” of this\\nappeal. Cal. R. Ct. 8.548(a).\\n\\n Second, in resolving the parties’ competing contentions,\\nour task, as a federal court sitting in diversity, is “to\\napproximate state law as closely as possible in order to make\\nsure that the vindication of the state right is without\\n\\f8 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\ndiscrimination because of the federal forum.” Murray,\\n924 F.3d at 1071 (quoting Ticknor v. Choice Hotels Int’l,\\nInc., 265 F.3d 931, 939 (9th Cir. 2001)). If a state’s highest\\ncourt has not spoken on an issue, “then we must predict how\\nthe state’s highest court would decide” the issue. Id. Or, “if\\nstate law permits it, we may exercise our discretion to certify\\na question to the state’s highest court.” Id. The question of\\nDynamex’s retroactive application has potentially broad\\nramifications for those who have been doing business in\\nCalifornia, but the question has not been answered by the\\nCalifornia Supreme Court. See Cal. R. Ct. 8.548(a)(2). 2 As\\ndiscussed, Dynamex enunciated anew a test for analyzing\\nwhether a worker is an employee under California wage\\norders. According to Jan-Pro and amici, that test, if it applies\\nretroactively, could lead to substantially greater liability for\\nCalifornia businesses, for conduct that occurred before\\nDynamex, than the pre-Dynamex legal regime. In particular,\\nthe decision could lead to greater liability in economic\\nsectors that rely more heavily on independent contractors.\\nFranchising is one such sector, and it is large. There are\\nmore than 77,000 franchise establishments employing over\\n755,000 people in California. IHS Markit Economics,\\nFranchise Business Economic Outlook for 2018 at 28\\n(2018), https://www.franchise.org/sites/default/files/Franch\\nise_Business_Outlook_Jan_2018.pdf. Others potentially\\naffected are small businesses and their employees, as well as\\nworkers in the gig economy. Given the potential importance\\nof the retroactivity issue to California businesses and\\nworkers, and because the question is unsettled, “‘[c]omity\\nand federalism counsel that the California Supreme Court,\\n\\n 2\\n We note, however, that the Court did deny without comment a\\npetition by the California Employment Law Council, an amicus, to\\nmodify the Dynamex decision to apply prospectively-only. The ABC\\ntest will thus be applied retrospectively in Dynamex itself.\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 9\\n\\nrather than this court, should answer’ the certified question.”\\nRobinson v. Lewis, 795 F.3d 926, 928 (9th Cir. 2015)\\n(quoting Munson v. Del Taco, Inc., 522 F.3d 997, 999 (9th\\nCir. 2008)); see also Murray, 924 F.3d at 1072.\\n\\n In asking the California Supreme Court to resolve this\\nquestion, we respectfully direct it to our own analysis in the\\nwithdrawn opinion to the extent that the Court may find it\\nhelpful. See 923 F.3d at 586–88. We also respectfully direct\\nit to the voluminous briefs of the parties and amici. To that\\nend, we GRANT Plaintiffs’ motion to take judicial notice of\\na hearing transcript in Juarez v. Jani-King of Cal., Inc., No.\\n4:09-cv-03495, Dkt. No. 240 (N.D. Cal. Dec. 14, 2018), in\\nwhich Judge Yvonne Gonzalez-Rodgers reasoned that\\nDynamex applies retroactively (Dkt. No. 111). We likewise\\nGRANT the California Employment Law Council’s motion\\nto file an amicus brief (Dkt. No. 97).\\n\\n ***\\n\\n In light of the foregoing, we ask the California Supreme\\nCourt to answer the following question: Does Dynamex\\nOperations West Inc. v. Superior Court, 416 P.3d 1 (Cal.\\n2018), apply retroactively?\\n\\n III\\n\\n We provide the following information as required by\\nCalifornia Rule of Court 8.548(b)(1).\\n\\n The title of this case is GERARDO VAZQUEZ,\\nGLORIA ROMAN, and JUAN AGUILAR, Plaintiffs-\\nAppellants v. JAN-PRO FRANCHISING\\nINTERNATIONAL, INC., Defendant-Appellee.\\n\\n The case number in our court is 17-16096.\\n\\f10 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\n Plaintiffs-Appellants Gerardo Vazquez, Gloria Roman,\\nand Juan Aguilar are represented by the following counsel:\\n\\n Shannon Liss-Riordan\\n Lichten & Liss-Riordan, P.C.\\n 729 Boylston Street, Suite 2000\\n Boston, MA 02116\\n\\n Defendant-Appellee Jan-Pro Franchising International,\\nInc. is represented by the following counsel:\\n\\n Theodore J. Boutrous, Jr., Samuel Eckman, and Theane\\n Evangelis\\n Gibson, Dunn & Crutcher LLP\\n 333 South Grand Avenue\\n Los Angeles, CA 90071-3197\\n\\n Jeffrey Mark Rosin\\n O’Hagan Meyer, PLLC\\n 111 Huntington Avenue, Suite 2860\\n Boston, MA 02199\\n\\n We designate Gerardo Vazquez, Gloria Roman, and Juan\\nAguilar as the petitioners if our request for a decision is\\ngranted, as they are the appellants before our court.\\n\\n The Clerk of Court is hereby directed to transmit\\nforthwith to the California Supreme Court, under official\\nseal of the Ninth Circuit, a copy of this order and request for\\ncertification and all relevant briefs and excerpts of record\\npursuant to California Rule of Court 8.548. Submission of\\nthis case is withdrawn, and the case will be resubmitted\\nfollowing receipt of the California Supreme Court’s opinion\\non the certified question or notification that it declines to\\nanswer the certified question. The Clerk shall\\nadministratively close this docket pending a ruling by the\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 11\\n\\nCalifornia Supreme Court regarding the certified question.\\nThe panel shall retain jurisdiction over further proceedings\\nin this court. The parties shall notify the Clerk of this court\\nwithin one week after the California Supreme Court accepts\\nor rejects certification. In the event the California Supreme\\nCourt grants certification, the parties shall notify the Clerk\\nwithin one week after the Court renders its opinion.\\n\\n CERTIFICATION REQUESTED; SUBMISSION\\nVACATED.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4481,"cells":{"id":{"kind":"number","value":4665565,"string":"4,665,565"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Gerardo Vazquez v. Jan-Pro Franchising Int'l Inc."},"decision_date":{"kind":"string","value":"2019-09-24"},"docket_number":{"kind":"string","value":"17-16096"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block, District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nGERARDO VAZQUEZ, GLORIA No. 17-16096\\nROMAN, and JUAN AGUILAR, on\\nbehalf of themselves and all other D.C. No.\\nsimilarly situated, 3:16-cv-05961-\\n Plaintiffs-Appellants, WHA\\n\\n v.\\n OPINION\\nJAN-PRO FRANCHISING\\nINTERNATIONAL, INC.,\\n Defendant-Appellee.\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of California\\n William Alsup, District Judge, Presiding\\n\\n Argued and Submitted December 18, 2018\\n San Francisco, California\\n\\n Filed September 24, 2019\\n\\f2 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\\n Judges, and Frederic Block, District Judge. *\\n\\n Per Curiam Opinion\\n\\n\\n SUMMARY **\\n\\n\\n Res Judicata\\n\\n In a separate published order, the panel certified to the\\nCalifornia Supreme Court the issue of the retroactive\\napplication of Dynamex Operations West Inc. v. Superior\\nCourt, 416 P.3d 1 (Cal. 2018), and in this opinion, re-\\nestablished the remaining holdings from the now-withdrawn\\nopinion Vazquez v. Jan-Pro Int’l, Inc., 2019 WL 3271969\\n(9th Cir. Jul. 22, 2019).\\n\\n For the reasons laid out in the earlier opinion, the panel\\nheld that the doctrines of res judicata and law of the case did\\nnot bar plaintiffs from contending that they are employees\\nunder Dynamex’s ABC test, and rejected the contention that\\na retroactive application of Dynamex would violate its\\nfederal due process rights.\\n\\n\\n\\n\\n *\\n The Honorable Frederic Block, United States District Judge for the\\nEastern District of New York, sitting by designation.\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 3\\n\\n COUNSEL\\n\\nShannon Liss-Riordan (argued), Lichten & Liss-Riordan\\nP.C., Boston, Massachusetts, for Plaintiffs-Appellants.\\n\\nJeffrey M. Rosin (argued), O’Hagan Meyer PLLC, Boston,\\nMassachusetts; Theodore J. Boutrous Jr., Theane D.\\nEvangelis, and Samuel Eckman, Gibson Dunn & Crutcher\\nLLP, Los Angeles, California; for Defendant-Appellee.\\n\\nCatherine K. Ruckelshaus and Najah A. Farley, National\\nEmployment Law Project, New York, New York, for Amici\\nCuriae National Employment Law Project, Equal Rights\\nAdvocates, Dolores Street Community Services, Legal Aid\\nat Work, and Worksafe, Inc.\\n\\nNorman M. Leon, DLA Piper LLP, Chicago, Illinois;\\nJonathan Solish, Bryan Cave Leighton Paisner LLP, Santa\\nMonica, California; James F. Speyer, Arnold & Porter Kaye\\nScholer LLP, Los Angeles, California; for Amicus Curiae\\nThe International Franchise Association.\\n\\nBradley A. Benbrook and Stephen M. Duvernay, Benbrook\\nLaw Group PC, Sacramento, California; Luke A. Wake,\\nNFIB Small Business Legal Center, Sacramento, California;\\nfor Amicus Curiae National Federation of Independent\\nBusiness Small Business Legal Center.\\n\\nAdam G. Unikowsky, Jenner & Block LLP, Washington,\\nD.C.; Steven P. Lehotsky, U.S. Chamber Litigation Center,\\nWashington, D.C.; for Amicus Curiae Chamber of\\nCommerce of the United States of America.\\n\\f4 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\nJames F. Speyer, Arnold & Porter Kaye Scholer LLP, Los\\nAngeles, California, for Amicus Curiae California Chamber\\nof Commerce.\\n\\nPaul Grossman and Paul W. Cane Jr., Paul Hastings LLP,\\nLos Angeles, California, for Amicus Curiae California\\nEmployment Law Council.\\n\\n\\n OPINION\\n\\nPER CURIAM:\\n\\n We have certified to the California Supreme Court the\\nquestion whether that Court’s decision in Dynamex\\nOperations West Inc. v. Superior Court, 416 P.3d 1 (Cal.\\n2018), applies retroactively. See Vazquez v. Jan-Pro Int’l,\\nInc., __ F.3d __ (9th Cir. 2019). We here re-establish the\\nremaining holdings from our now-withdrawn opinion in the\\nmatter. See Vazquez v. Jan-Pro Int’l, Inc., __ F.3d __, 2019\\nWL 3271969 (9th Cir. July 22, 2019). For the reasons laid\\nout in our earlier opinion, we hold that the doctrines of res\\njudicata and law of the case do not bar Plaintiffs from\\ncontending that they are employees under Dynamex’s ABC\\ntest. See 923 F.3d at 583–86. We likewise reject Jan-Pro’s\\ncontention that a retroactive application of Dynamex would\\nviolate its federal due process rights. See id. at 588–90.\\nFinally, if Dynamex does apply retroactively, the district\\ncourt’s reliance on Patterson v. Domino’s Pizza, LLC,\\n333 P.3d 723 (Cal. 2014), and the “special features of the\\nfranchise relationship” was misplaced. See id. at 594–95. As\\nthese rulings remain in place, the issue certified to the\\nCalifornia Supreme Court “could determine the outcome” of\\nthe remainder of the appeal. Cal. R. Ct. 8.548(a).\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4442818/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"RONALD M GOULD"},"judge2":{"kind":"string","value":"MARSHA S BERZON"},"judge3":{"kind":"string","value":"FREDERIC BLOCK"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4665565/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Gerardo Vazquez v. Jan-Pro Franchising Int'l Inc.\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nGERARDO VAZQUEZ, GLORIA No. 17-16096\nROMAN, and JUAN AGUILAR, on\nbehalf of themselves and all other D.C. No.\nsimilarly situated, 3:16-cv-05961-\n Plaintiffs-Appellants, WHA\n\n v.\n OPINION\nJAN-PRO FRANCHISING\nINTERNATIONAL, INC.,\n Defendant-Appellee.\n\n\n Appeal from the United States District Court\n for the Northern District of California\n William Alsup, District Judge, Presiding\n\n Argued and Submitted December 18, 2018\n San Francisco, California\n\n Filed September 24, 2019\n\f2 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\n\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\n Judges, and Frederic Block, District Judge. *\n\n Per Curiam Opinion\n\n\n SUMMARY **\n\n\n Res Judicata\n\n In a separate published order, the panel certified to the\nCalifornia Supreme Court the issue of the retroactive\napplication of Dynamex Operations West Inc. v. Superior\nCourt, 416 P.3d 1 (Cal. 2018), and in this opinion, re-\nestablished the remaining holdings from the now-withdrawn\nopinion Vazquez v. Jan-Pro Int’l, Inc., 2019 WL 3271969\n(9th Cir. Jul. 22, 2019).\n\n For the reasons laid out in the earlier opinion, the panel\nheld that the doctrines of res judicata and law of the case did\nnot bar plaintiffs from contending that they are employees\nunder Dynamex’s ABC test, and rejected the contention that\na retroactive application of Dynamex would violate its\nfederal due process rights.\n\n\n\n\n *\n The Honorable Frederic Block, United States District Judge for the\nEastern District of New York, sitting by designation.\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 3\n\n COUNSEL\n\nShannon Liss-Riordan (argued), Lichten & Liss-Riordan\nP.C., Boston, Massachusetts, for Plaintiffs-Appellants.\n\nJeffrey M. Rosin (argued), O’Hagan Meyer PLLC, Boston,\nMassachusetts; Theodore J. Boutrous Jr., Theane D.\nEvangelis, and Samuel Eckman, Gibson Dunn & Crutcher\nLLP, Los Angeles, California; for Defendant-Appellee.\n\nCatherine K. Ruckelshaus and Najah A. Farley, National\nEmployment Law Project, New York, New York, for Amici\nCuriae National Employment Law Project, Equal Rights\nAdvocates, Dolores Street Community Services, Legal Aid\nat Work, and Worksafe, Inc.\n\nNorman M. Leon, DLA Piper LLP, Chicago, Illinois;\nJonathan Solish, Bryan Cave Leighton Paisner LLP, Santa\nMonica, California; James F. Speyer, Arnold & Porter Kaye\nScholer LLP, Los Angeles, California; for Amicus Curiae\nThe International Franchise Association.\n\nBradley A. Benbrook and Stephen M. Duvernay, Benbrook\nLaw Group PC, Sacramento, California; Luke A. Wake,\nNFIB Small Business Legal Center, Sacramento, California;\nfor Amicus Curiae National Federation of Independent\nBusiness Small Business Legal Center.\n\nAdam G. Unikowsky, Jenner & Block LLP, Washington,\nD.C.; Steven P. Lehotsky, U.S. Chamber Litigation Center,\nWashington, D.C.; for Amicus Curiae Chamber of\nCommerce of the United States of America.\n\f4 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\n\nJames F. Speyer, Arnold & Porter Kaye Scholer LLP, Los\nAngeles, California, for Amicus Curiae California Chamber\nof Commerce.\n\nPaul Grossman and Paul W. Cane Jr., Paul Hastings LLP,\nLos Angeles, California, for Amicus Curiae California\nEmployment Law Council.\n\n\n OPINION\n\nPER CURIAM:\n\n We have certified to the California Supreme Court the\nquestion whether that Court’s decision in Dynamex\nOperations West Inc. v. Superior Court, 416 P.3d 1 (Cal.\n2018), applies retroactively. See Vazquez v. Jan-Pro Int’l,\nInc., __ F.3d __ (9th Cir. 2019). We here re-establish the\nremaining holdings from our now-withdrawn opinion in the\nmatter. See Vazquez v. Jan-Pro Int’l, Inc., __ F.3d __, 2019\nWL 3271969 (9th Cir. July 22, 2019). For the reasons laid\nout in our earlier opinion, we hold that the doctrines of res\njudicata and law of the case do not bar Plaintiffs from\ncontending that they are employees under Dynamex’s ABC\ntest. See 923 F.3d at 583–86. We likewise reject Jan-Pro’s\ncontention that a retroactive application of Dynamex would\nviolate its federal due process rights. See id. at 588–90.\nFinally, if Dynamex does apply retroactively, the district\ncourt’s reliance on Patterson v. Domino’s Pizza, LLC,\n333 P.3d 723 (Cal. 2014), and the “special features of the\nfranchise relationship” was misplaced. See id. at 594–95. As\nthese rulings remain in place, the issue certified to the\nCalifornia Supreme Court “could determine the outcome” of\nthe remainder of the appeal. Cal. R. Ct. 8.548(a).\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Gerardo Vazquez v. Jan-Pro Franchising Int'l Inc.\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-24\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n\\nGERARDO VAZQUEZ, GLORIA No. 17-16096\\nROMAN, and JUAN AGUILAR, on\\nbehalf of themselves and all other D.C. No.\\nsimilarly situated, 3:16-cv-05961-\\n Plaintiffs-Appellants, WHA\\n\\n v.\\n OPINION\\nJAN-PRO FRANCHISING\\nINTERNATIONAL, INC.,\\n Defendant-Appellee.\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of California\\n William Alsup, District Judge, Presiding\\n\\n Argued and Submitted December 18, 2018\\n San Francisco, California\\n\\n Filed September 24, 2019\\n\\f2 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\\n Judges, and Frederic Block, District Judge. *\\n\\n Per Curiam Opinion\\n\\n\\n SUMMARY **\\n\\n\\n Res Judicata\\n\\n In a separate published order, the panel certified to the\\nCalifornia Supreme Court the issue of the retroactive\\napplication of Dynamex Operations West Inc. v. Superior\\nCourt, 416 P.3d 1 (Cal. 2018), and in this opinion, re-\\nestablished the remaining holdings from the now-withdrawn\\nopinion Vazquez v. Jan-Pro Int’l, Inc., 2019 WL 3271969\\n(9th Cir. Jul. 22, 2019).\\n\\n For the reasons laid out in the earlier opinion, the panel\\nheld that the doctrines of res judicata and law of the case did\\nnot bar plaintiffs from contending that they are employees\\nunder Dynamex’s ABC test, and rejected the contention that\\na retroactive application of Dynamex would violate its\\nfederal due process rights.\\n\\n\\n\\n\\n *\\n The Honorable Frederic Block, United States District Judge for the\\nEastern District of New York, sitting by designation.\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 3\\n\\n COUNSEL\\n\\nShannon Liss-Riordan (argued), Lichten & Liss-Riordan\\nP.C., Boston, Massachusetts, for Plaintiffs-Appellants.\\n\\nJeffrey M. Rosin (argued), O’Hagan Meyer PLLC, Boston,\\nMassachusetts; Theodore J. Boutrous Jr., Theane D.\\nEvangelis, and Samuel Eckman, Gibson Dunn & Crutcher\\nLLP, Los Angeles, California; for Defendant-Appellee.\\n\\nCatherine K. Ruckelshaus and Najah A. Farley, National\\nEmployment Law Project, New York, New York, for Amici\\nCuriae National Employment Law Project, Equal Rights\\nAdvocates, Dolores Street Community Services, Legal Aid\\nat Work, and Worksafe, Inc.\\n\\nNorman M. Leon, DLA Piper LLP, Chicago, Illinois;\\nJonathan Solish, Bryan Cave Leighton Paisner LLP, Santa\\nMonica, California; James F. Speyer, Arnold & Porter Kaye\\nScholer LLP, Los Angeles, California; for Amicus Curiae\\nThe International Franchise Association.\\n\\nBradley A. Benbrook and Stephen M. Duvernay, Benbrook\\nLaw Group PC, Sacramento, California; Luke A. Wake,\\nNFIB Small Business Legal Center, Sacramento, California;\\nfor Amicus Curiae National Federation of Independent\\nBusiness Small Business Legal Center.\\n\\nAdam G. Unikowsky, Jenner & Block LLP, Washington,\\nD.C.; Steven P. Lehotsky, U.S. Chamber Litigation Center,\\nWashington, D.C.; for Amicus Curiae Chamber of\\nCommerce of the United States of America.\\n\\f4 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\nJames F. Speyer, Arnold & Porter Kaye Scholer LLP, Los\\nAngeles, California, for Amicus Curiae California Chamber\\nof Commerce.\\n\\nPaul Grossman and Paul W. Cane Jr., Paul Hastings LLP,\\nLos Angeles, California, for Amicus Curiae California\\nEmployment Law Council.\\n\\n\\n OPINION\\n\\nPER CURIAM:\\n\\n We have certified to the California Supreme Court the\\nquestion whether that Court’s decision in Dynamex\\nOperations West Inc. v. Superior Court, 416 P.3d 1 (Cal.\\n2018), applies retroactively. See Vazquez v. Jan-Pro Int’l,\\nInc., __ F.3d __ (9th Cir. 2019). We here re-establish the\\nremaining holdings from our now-withdrawn opinion in the\\nmatter. See Vazquez v. Jan-Pro Int’l, Inc., __ F.3d __, 2019\\nWL 3271969 (9th Cir. July 22, 2019). For the reasons laid\\nout in our earlier opinion, we hold that the doctrines of res\\njudicata and law of the case do not bar Plaintiffs from\\ncontending that they are employees under Dynamex’s ABC\\ntest. See 923 F.3d at 583–86. We likewise reject Jan-Pro’s\\ncontention that a retroactive application of Dynamex would\\nviolate its federal due process rights. See id. at 588–90.\\nFinally, if Dynamex does apply retroactively, the district\\ncourt’s reliance on Patterson v. Domino’s Pizza, LLC,\\n333 P.3d 723 (Cal. 2014), and the “special features of the\\nfranchise relationship” was misplaced. See id. at 594–95. As\\nthese rulings remain in place, the issue certified to the\\nCalifornia Supreme Court “could determine the outcome” of\\nthe remainder of the appeal. Cal. R. Ct. 8.548(a).\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4482,"cells":{"id":{"kind":"number","value":4665566,"string":"4,665,566"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Gerardo Vazquez v. Jan-Pro Franchising Int'l Inc."},"decision_date":{"kind":"string","value":"2019-09-24"},"docket_number":{"kind":"string","value":"17-16096"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Ninth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block, District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"The Honorable Frederic Block, United States District Judge for the\", \"type\": \"010combined\", \"text\": \"FOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n GERARDO VAZQUEZ, GLORIA No. 17-16096\\n ROMAN, and JUAN AGUILAR,\\n on behalf of themselves and D.C. No.\\n all other similarly situated, 3:16-cv-05961-WHA\\n Plaintiffs-Appellants,\\n\\n v. ORDER\\n CERTIFYING\\n JAN-PRO FRANCHISING QUESTION TO THE\\n INTERNATIONAL, INC., CALIFORNIA\\n Defendant-Appellee. SUPREME COURT\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of California\\n William Alsup, District Judge, Presiding\\n\\n Argued and Submitted December 18, 2018\\n San Francisco, California\\n\\n Filed September 24, 2019\\n\\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\\n Judges, and Frederic Block, District Judge. *\\n\\n Order\\n *\\n The Honorable Frederic Block, United States District Judge for the\\nEastern District of New York, sitting by designation.\\n\\f2 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\n SUMMARY **\\n\\n\\n Certified Question to the California Supreme Court\\n\\n The panel certified the following question of state law\\nto the California Supreme Court:\\n\\n Does Dynamex Operations West Inc. v.\\n Superior Court, 416 P.3d 1 (Cal. 2018), apply\\n retroactively?\\n\\n\\n\\n ORDER\\n\\n We ask the California Supreme Court to resolve an open\\nquestion of California state law and certify the following\\nquestion: Does the Court’s decision in Dynamex Operations\\nWest Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018), apply\\nretroactively? Our phrasing of the question should not\\nrestrict the Court’s consideration of the issues involved. The\\nCourt may rephrase the questions as it sees fit in order to\\naddress the contentions of the parties. If the Court agrees to\\ndecide this question, we agree to accept its decision. We\\nrecognize that the Court has a substantial caseload, but we\\nsubmit this question in the interests of comity and because\\nof its significance for California labor law and California\\nbusinesses.\\n\\n\\n\\n\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 3\\n\\n I\\n\\n This case dates back more than a decade. We provide\\nbackground on the parties, their dispute, the procedural\\nhistory of the case, and their contentions on appeal to frame\\nthe question we are certifying.\\n\\n A\\n\\n Defendant-Appellee, Jan-Pro International Franchising,\\nInc. (“Jan-Pro”) is a company headquartered in Georgia. It\\nlicenses a system for marketing cleaning services to\\n“regional master franchisees,” in multiple countries,\\nincluding the United States. Regional master franchisees\\npurchase franchises for exclusive operations in a given\\nregional area.\\n\\n Regional master franchisees, in turn, are franchisors to\\n“unit franchisees.” Regional master franchisors 1 advertise\\ncleaning services within the geographic region covered by\\nthe franchise, provide bids to potential customers, and\\nprocess payments. Unit franchisees are given the option to\\naccept or reject these bids; for any bids they accept, they\\nperform the actual cleaning under the “Jan-Pro” name. Unit\\nfranchisees are also allowed to solicit their own accounts.\\nAfter royalties and other fees are deducted for Jan-Pro and\\nthe regional master franchisor, the balance is remitted to the\\nunit franchisee. Regional master franchisors also offer\\n“business and management services” to unit franchisees,\\nincluding training, “assistance with customer relations”\\n(which includes finding a substitute unit franchisee if a\\nscheduled unit franchisee is unable to fulfill a contract), and\\n\\n 1\\n We refer to the intermediate entities as either “regional master\\nfranchisees” or “regional master franchisors” depending on whether the\\nfocus is on their relationships with Jan-Pro or with the unit franchisees.\\n\\f4 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\ninvoicing. Some regional master franchisors provide\\ncleaning supplies to their unit franchisees.\\n\\n Jan-Pro is not party to any contract with unit franchisees.\\nJan-Pro contracts with the master franchisors, who then\\ncontract with unit franchisees. Unit franchisees may hire\\ntheir own employees and may act in individual or corporate\\ncapacities.\\n\\n Plaintiffs-Appellants (“Plaintiffs”) are former unit\\nfranchisees who purchased their franchises from two\\ndifferent regional master franchisors. Gerardo Vazquez\\npurchased his franchise from master franchisor New Venture\\nof San Bernardino, LLC for $2,800; Gloria Roman bought\\nhers from Connor-Nolan, Inc. for $2,800; and Juan Aguilar,\\nwith a business partner, acquired his from Connor-Nolan,\\nInc. for $9,000. See Roman v. Jan-Pro Franchising Int’l,\\nInc., No. 16-cv-05961, 2017 WL 2265447, at *1 (N.D. Cal.\\nMay 24, 2017).\\n\\n B\\n\\n This case began in 2008 when three other former Jan-Pro\\nunit franchisees (not Plaintiffs) filed a putative class action\\nin the District Court for the District of Massachusetts. By\\nthe end of the year, there were eight additional plaintiffs,\\nincluding the Plaintiffs here, who are California residents.\\nTogether, they alleged that Jan-Pro had developed a\\nsophisticated “three-tier” franchising model to misclassify\\nits janitors as independent contractors and avoid paying\\nminimum wages and overtime compensation.\\n\\n Because of the variety of state laws involved, the\\nMassachusetts district court chose a test case and, over Jan-\\nPro’s objection, severed Plaintiffs’ cases and sent them to\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 5\\n\\nthe Northern District of California, Plaintiffs’ place of\\nresidence.\\n\\n C\\n\\n Eventually, Jan-Pro moved for summary judgment in\\nthis case. Jan-Pro contended that the California Supreme\\nCourt’s decision in Patterson v. Domino’s Pizza, LLC—a\\ncase concerning the vicarious liability of a franchisor for a\\nsexual assault against an employee of its franchisee,\\n333 P.3d 723 (Cal. 2014)—provided the relevant standard\\nfor determining whether Plaintiffs should be considered\\nemployees of Jan-Pro. See Roman, 2017 WL 2265447,\\nat *2. Plaintiffs, in turn, contended that Martinez v. Combs,\\n231 P.3d 259 (Cal. 2010), provided the standard because this\\nis a wage and hour case. Roman, 2017 WL 2265447, at *2.\\nIn Martinez, the California Supreme Court held that “to\\nemploy,” as used in California wage orders, means “(a) to\\nexercise control over the wages, hours or working\\nconditions, or (b) to suffer or permit to work, or (c) to\\nengage, thereby creating a common law employment\\nrelationship.” Martinez, 231 P.3d at 278.\\n\\n The district court recognized that “no binding decision\\nha[d] addressed the standard applicable to determining\\nwhether a franchisor is an employer of a franchisee,” and “in\\nthe absence of controlling authority” it applied “the Martinez\\nstandard, with the gloss of Patterson.” Roman, 2017 WL\\n2265447, at *3. Analyzing Martinez’s three prongs, the\\ndistrict court held that Plaintiffs had not established a\\ngenuine issue of material fact as to whether they were\\nemployees under any of the three prongs, and the court\\ngranted summary judgment to Jan-Pro. Id. at *5–6.\\n\\n Plaintiffs filed a timely notice of appeal.\\n\\f6 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\n D\\n\\n While this appeal was pending and after briefing was\\ncompleted, the California Supreme Court decided Dynamex.\\nDynamex turned on the definition of “suffer or permit”—i.e.,\\nMartinez’s second prong—for California wage order cases.\\nSpecifically, Dynamex held that a “hiring entity” (a putative\\nemployer) “suffers or permits” a putative employee to work\\nif it cannot overcome the “ABC test.” 416 P.3d at 35. A\\nhiring entity must establish three elements to disprove\\nemployment status: (A) that the worker is free from the\\ncontrol and direction of the hiring entity in connection with\\nthe performance of the work, both under the contract for the\\nperformance of the work and in fact; (B) that the worker\\nperforms work that is outside the usual course of the hiring\\nentity’s business; and (C) that the worker is customarily\\nengaged in an independently established trade, occupation,\\nor business of the same nature as the work performed. Id.\\nat 35.\\n\\n E\\n\\n Because Dynamex postdated the district court’s decision,\\nwe issued an order directing the parties to brief its effect on\\nthe merits of this case. Among other contentions, the parties\\ndisputed whether the decision applies retroactively.\\n\\n On May 2, 2019, we issued a published opinion holding,\\ninter alia, that Dynamex applies retroactively. See 923 F.3d\\n575. On petition for panel rehearing, however, we decided\\nto certify the retroactivity question to the California Supreme\\nCourt. We therefore issued an order withdrawing our prior\\nopinion. See Vazquez v. Jan-Pro Int’l, Inc., __ F.3d __, 2019\\nWL 3271969 (9th Cir. July 22, 2019).\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 7\\n\\n II\\n\\n “We invoke the certification process only after careful\\nconsideration and do not do so lightly.” Kremen v. Cohen,\\n325 F.3d 1035, 1037 (9th Cir. 2003). “In deciding whether\\nto exercise our discretion, we consider: (1) whether the\\nquestion presents ‘important public policy ramifications’ yet\\nunresolved by the state court; (2) whether the issue is new,\\nsubstantial, and of broad application; (3) the state court’s\\ncaseload; and (4) ‘the spirit of comity and federalism.’”\\nMurray v. BEJ Minerals, LLC, 924 F.3d 1070, 1072 (9th Cir.\\n2019) (en banc) (quoting Kremen, 325 F.3d at 1037–38).\\nHere, we conclude that it is prudent to certify the question of\\nDynamex’s retroactivity to the California Supreme Court.\\nWe do so for two reasons.\\n\\n First, in our now-withdrawn opinion, we rejected Jan-\\nPro’s argument that the doctrines of res judicata and law of\\nthe case bar Plaintiffs from contending that they are\\nemployees under the ABC test. See 923 F.3d at 583–86. We\\nlikewise rejected their contention that a retroactive\\napplication would violate its federal due process rights. See\\nid. at 588–90. Finally, we held that if Dynamex does apply,\\nthe district court’s reliance on Patterson and the “special\\nfeatures of the franchise relationship” was misplaced. See\\nid. at 594–95. We continue to adhere to those conclusions\\nand incorporate them here by reference. See Vazquez v. Jan-\\nPro Int’l, Inc., __ F.3d __ (9th Cir. 2019). Accordingly, the\\nquestion of whether Dynamex applies retroactively “could\\ndetermine the outcome” of this appeal. Cal. R. Ct. 8.548(a).\\n\\n Second, in resolving the parties’ competing contentions,\\nour task, as a federal court sitting in diversity, is “to\\napproximate state law as closely as possible in order to make\\nsure that the vindication of the state right is without\\ndiscrimination because of the federal forum.” Murray,\\n\\f8 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\n924 F.3d at 1071 (quoting Ticknor v. Choice Hotels Int’l,\\nInc., 265 F.3d 931, 939 (9th Cir. 2001)). If a state’s highest\\ncourt has not spoken on an issue, “then we must predict how\\nthe state’s highest court would decide” the issue. Id. Or, “if\\nstate law permits it, we may exercise our discretion to certify\\na question to the state’s highest court.” Id. The question of\\nDynamex’s retroactive application has potentially broad\\nramifications for those who have been doing business in\\nCalifornia, but the question has not been answered by the\\nCalifornia Supreme Court. See Cal. R. Ct. 8.548(a)(2). 2 As\\ndiscussed, Dynamex enunciated anew a test for analyzing\\nwhether a worker is an employee under California wage\\norders. According to Jan-Pro and amici, that test, if it applies\\nretroactively, could lead to substantially greater liability for\\nCalifornia businesses, for conduct that occurred before\\nDynamex, than the pre-Dynamex legal regime. In particular,\\nthe decision could lead to greater liability in economic\\nsectors that rely more heavily on independent contractors.\\nFranchising is one such sector, and it is large. There are\\nmore than 77,000 franchise establishments employing over\\n755,000 people in California. IHS Markit Economics,\\nFranchise Business Economic Outlook for 2018 at 28\\n(2018), https://www.franchise.org/sites/default/files/Franch\\nise_Business_Outlook_Jan_2018.pdf. Others potentially\\naffected are small businesses and their employees, as well as\\nworkers in the gig economy. Given the potential importance\\nof the retroactivity issue to California businesses and\\nworkers, and because the question is unsettled, “‘[c]omity\\nand federalism counsel that the California Supreme Court,\\nrather than this court, should answer’ the certified question.”\\n\\n 2\\n We note, however, that the Court did deny without comment a\\npetition by the California Employment Law Council, an amicus, to\\nmodify the Dynamex decision to apply prospectively-only. The ABC\\ntest will thus be applied retrospectively in Dynamex itself.\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 9\\n\\nRobinson v. Lewis, 795 F.3d 926, 928 (9th Cir. 2015)\\n(quoting Munson v. Del Taco, Inc., 522 F.3d 997, 999 (9th\\nCir. 2008)); see also Murray, 924 F.3d at 1072.\\n\\n In asking the California Supreme Court to resolve this\\nquestion, we respectfully direct it to our own analysis in the\\nwithdrawn opinion to the extent that the Court may find it\\nhelpful. See 923 F.3d at 586–88. We also respectfully direct\\nit to the voluminous briefs of the parties and amici. To that\\nend, we GRANT Plaintiffs’ motion to take judicial notice of\\na hearing transcript in Juarez v. Jani-King of Cal., Inc., No.\\n4:09-cv-03495, Dkt. No. 240 (N.D. Cal. Dec. 14, 2018), in\\nwhich Judge Yvonne Gonzalez-Rodgers reasoned that\\nDynamex applies retroactively (Dkt. No. 111). We likewise\\nGRANT the California Employment Law Council’s motion\\nto file an amicus brief (Dkt. No. 97).\\n\\n ***\\n\\n In light of the foregoing, we ask the California Supreme\\nCourt to answer the following question: Does Dynamex\\nOperations West Inc. v. Superior Court, 416 P.3d 1 (Cal.\\n2018), apply retroactively?\\n\\n III\\n\\n We provide the following information as required by\\nCalifornia Rule of Court 8.548(b)(1).\\n\\n The title of this case is GERARDO VAZQUEZ,\\nGLORIA ROMAN, and JUAN AGUILAR, Plaintiffs-\\nAppellants v. JAN-PRO FRANCHISING\\nINTERNATIONAL, INC., Defendant-Appellee.\\n\\n The case number in our court is 17-16096.\\n\\f10 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\n Plaintiffs-Appellants Gerardo Vazquez, Gloria Roman,\\nand Juan Aguilar are represented by the following counsel:\\n\\n Shannon Liss-Riordan\\n Lichten & Liss-Riordan, P.C.\\n 729 Boylston Street, Suite 2000\\n Boston, MA 02116\\n\\n Defendant-Appellee Jan-Pro Franchising International,\\nInc. is represented by the following counsel:\\n\\n Theodore J. Boutrous, Jr., Samuel Eckman, and Theane\\n Evangelis\\n Gibson, Dunn & Crutcher LLP\\n 333 South Grand Avenue\\n Los Angeles, CA 90071-3197\\n\\n Jeffrey Mark Rosin\\n O’Hagan Meyer, PLLC\\n 111 Huntington Avenue, Suite 2860\\n Boston, MA 02199\\n\\n We designate Gerardo Vazquez, Gloria Roman, and Juan\\nAguilar as the petitioners if our request for a decision is\\ngranted, as they are the appellants before our court.\\n\\n The Clerk of Court is hereby directed to transmit\\nforthwith to the California Supreme Court, under official\\nseal of the Ninth Circuit, a copy of this order and request for\\ncertification and all relevant briefs and excerpts of record\\npursuant to California Rule of Court 8.548. Submission of\\nthis case is withdrawn, and the case will be resubmitted\\nfollowing receipt of the California Supreme Court’s opinion\\non the certified question or notification that it declines to\\nanswer the certified question. The Clerk shall\\nadministratively close this docket pending a ruling by the\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 11\\n\\nCalifornia Supreme Court regarding the certified question.\\nThe panel shall retain jurisdiction over further proceedings\\nin this court. The parties shall notify the Clerk of this court\\nwithin one week after the California Supreme Court accepts\\nor rejects certification. In the event the California Supreme\\nCourt grants certification, the parties shall notify the Clerk\\nwithin one week after the Court renders its opinion.\\n\\n CERTIFICATION REQUESTED; SUBMISSION\\nVACATED.\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4442819/\", \"author_raw\": \"The Honorable Frederic Block, United States District Judge for the\"}]}"},"judge1":{"kind":"string","value":"RONALD M GOULD"},"judge2":{"kind":"string","value":"MARSHA S BERZON"},"judge3":{"kind":"string","value":"FREDERIC BLOCK"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4665566/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Gerardo Vazquez v. Jan-Pro Franchising Int'l Inc.\nCourt: U.S. Court of Appeals for the Ninth Circuit\nDate decided: 2019-09-24\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n GERARDO VAZQUEZ, GLORIA No. 17-16096\n ROMAN, and JUAN AGUILAR,\n on behalf of themselves and D.C. No.\n all other similarly situated, 3:16-cv-05961-WHA\n Plaintiffs-Appellants,\n\n v. ORDER\n CERTIFYING\n JAN-PRO FRANCHISING QUESTION TO THE\n INTERNATIONAL, INC., CALIFORNIA\n Defendant-Appellee. SUPREME COURT\n\n\n Appeal from the United States District Court\n for the Northern District of California\n William Alsup, District Judge, Presiding\n\n Argued and Submitted December 18, 2018\n San Francisco, California\n\n Filed September 24, 2019\n\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\n Judges, and Frederic Block, District Judge. *\n\n Order\n *\n The Honorable Frederic Block, United States District Judge for the\nEastern District of New York, sitting by designation.\n\f2 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\n\n SUMMARY **\n\n\n Certified Question to the California Supreme Court\n\n The panel certified the following question of state law\nto the California Supreme Court:\n\n Does Dynamex Operations West Inc. v.\n Superior Court, 416 P.3d 1 (Cal. 2018), apply\n retroactively?\n\n\n\n ORDER\n\n We ask the California Supreme Court to resolve an open\nquestion of California state law and certify the following\nquestion: Does the Court’s decision in Dynamex Operations\nWest Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018), apply\nretroactively? Our phrasing of the question should not\nrestrict the Court’s consideration of the issues involved. The\nCourt may rephrase the questions as it sees fit in order to\naddress the contentions of the parties. If the Court agrees to\ndecide this question, we agree to accept its decision. We\nrecognize that the Court has a substantial caseload, but we\nsubmit this question in the interests of comity and because\nof its significance for California labor law and California\nbusinesses.\n\n\n\n\n **\n This summary constitutes no part of the opinion of the court. It\nhas been prepared by court staff for the convenience of the reader.\n\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 3\n\n I\n\n This case dates back more than a decade. We provide\nbackground on the parties, their dispute, the procedural\nhistory of the case, and their contentions on appeal to frame\nthe question we are certifying.\n\n A\n\n Defendant-Appellee, Jan-Pro International Franchising,\nInc. (“Jan-Pro”) is a company headquartered in Georgia. It\nlicenses a system for marketing cleaning services to\n“regional master franchisees,” in multiple countries,\nincluding the United States. Regional master franchisees\npurchase franchises for exclusive operations in a given\nregional area.\n\n Regional master franchisees, in turn, are franchisors to\n“unit franchisees.” Regional master franchisors 1 advertise\ncleaning services within the geographic region covered by\nthe franchise, provide bids to potential customers, and\nprocess payments. Unit franchisees are given the option to\naccept or reject these bids; for any bids they accept, they\nperform the actual cleaning under the “Jan-Pro” name. Unit\nfranchisees are also allowed to solicit their own accounts.\nAfter royalties and other fees are deducted for Jan-Pro and\nthe regional master franchisor, the balance is remitted to the\nunit franchisee. Regional master franchisors also offer\n“business and management services” to unit franchisees,\nincluding training, “assistance with customer relations”\n(which includes finding a substitute unit franchisee if a\nscheduled unit franchisee is unable to fulfill a contract), and\n\n 1\n We refer to the intermediate entities as either “regional master\nfranchisees” or “regional master franchisors” depending on whether the\nfocus is on their relationships with Jan-Pro or with the unit franchisees.\n\f4 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\n\ninvoicing. Some regional master franchisors provide\ncleaning supplies to their unit franchisees.\n\n Jan-Pro is not party to any contract with unit franchisees.\nJan-Pro contracts with the master franchisors, who then\ncontract with unit franchisees. Unit franchisees may hire\ntheir own employees and may act in individual or corporate\ncapacities.\n\n Plaintiffs-Appellants (“Plaintiffs”) are former unit\nfranchisees who purchased their franchises from two\ndifferent regional master franchisors. Gerardo Vazquez\npurchased his franchise from master franchisor New Venture\nof San Bernardino, LLC for $2,800; Gloria Roman bought\nhers from Connor-Nolan, Inc. for $2,800; and Juan Aguilar,\nwith a business partner, acquired his from Connor-Nolan,\nInc. for $9,000. See Roman v. Jan-Pro Franchising Int’l,\nInc., No. 16-cv-05961, 2017 WL 2265447, at *1 (N.D. Cal.\nMay 24, 2017).\n\n B\n\n This case began in 2008 when three other former Jan-Pro\nunit franchisees (not Plaintiffs) filed a putative class action\nin the District Court for the District of Massachusetts. By\nthe end of the year, there were eight additional plaintiffs,\nincluding the Plaintiffs here, who are California residents.\nTogether, they alleged that Jan-Pro had developed a\nsophisticated “three-tier” franchising model to misclassify\nits janitors as independent contractors and avoid paying\nminimum wages and overtime compensation.\n\n Because of the variety of state laws involved, the\nMassachusetts district court chose a test case and, over Jan-\nPro’s objection, severed Plaintiffs’ cases and sent them to\n\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 5\n\nthe Northern District of California, Plaintiffs’ place of\nresidence.\n\n C\n\n Eventually, Jan-Pro moved for summary judgment in\nthis case. Jan-Pro contended that the California Supreme\nCourt’s decision in Patterson v. Domino’s Pizza, LLC—a\ncase concerning the vicarious liability of a franchisor for a\nsexual assault against an employee of its franchisee,\n333 P.3d 723 (Cal. 2014)—provided the relevant standard\nfor determining whether Plaintiffs should be considered\nemployees of Jan-Pro. See Roman, 2017 WL 2265447,\nat *2. Plaintiffs, in turn, contended that Martinez v. Combs,\n231 P.3d 259 (Cal. 2010), provided the standard because this\nis a wage and hour case. Roman, 2017 WL 2265447, at *2.\nIn Martinez, the California Supreme Court held that “to\nemploy,” as used in California wage orders, means “(a) to\nexercise control over the wages, hours or working\nconditions, or (b) to suffer or permit to work, or (c) to\nengage, thereby creating a common law employment\nrelationship.” Martinez, 231 P.3d at 278.\n\n The district court recognized that “no binding decision\nha[d] addressed the standard applicable to determining\nwhether a franchisor is an employer of a franchisee,” and “in\nthe absence of controlling authority” it applied “the Martinez\nstandard, with the gloss of Patterson.” Roman, 2017 WL\n2265447, at *3. Analyzing Martinez’s three prongs, the\ndistrict court held that Plaintiffs had not established a\ngenuine issue of material fact as to whether they were\nemployees under any of the three prongs, and the court\ngranted summary judgment to Jan-Pro. Id. at *5–6.\n\n Plaintiffs filed a timely notice of appeal.\n\f6 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\n\n D\n\n While this appeal was pending and after briefing was\ncompleted, the California Supreme Court decided Dynamex.\nDynamex turned on the definition of “suffer or permit”—i.e.,\nMartinez’s second prong—for California wage order cases.\nSpecifically, Dynamex held that a “hiring entity” (a putative\nemployer) “suffers or permits” a putative employee to work\nif it cannot overcome the “ABC test.” 416 P.3d at 35. A\nhiring entity must establish three elements to disprove\nemployment status: (A) that the worker is free from the\ncontrol and direction of the hiring entity in connection with\nthe performance of the work, both under the contract for the\nperformance of the work and in fact; (B) that the worker\nperforms work that is outside the usual course of the hiring\nentity’s business; and (C) that the worker is customarily\nengaged in an independently established trade, occupation,\nor business of the same nature as the work performed. Id.\nat 35.\n\n E\n\n Because Dynamex postdated the district court’s decision,\nwe issued an order directing the parties to brief its effect on\nthe merits of this case. Among other contentions, the parties\ndisputed whether the decision applies retroactively.\n\n On May 2, 2019, we issued a published opinion holding,\ninter alia, that Dynamex applies retroactively. See 923 F.3d\n575. On petition for panel rehearing, however, we decided\nto certify the retroactivity question to the California Supreme\nCourt. We therefore issued an order withdrawing our prior\nopinion. See Vazquez v. Jan-Pro Int’l, Inc., __ F.3d __, 2019\nWL 3271969 (9th Cir. July 22, 2019).\n\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 7\n\n II\n\n “We invoke the certification process only after careful\nconsideration and do not do so lightly.” Kremen v. Cohen,\n325 F.3d 1035, 1037 (9th Cir. 2003). “In deciding whether\nto exercise our discretion, we consider: (1) whether the\nquestion presents ‘important public policy ramifications’ yet\nunresolved by the state court; (2) whether the issue is new,\nsubstantial, and of broad application; (3) the state court’s\ncaseload; and (4) ‘the spirit of comity and federalism.’”\nMurray v. BEJ Minerals, LLC, 924 F.3d 1070, 1072 (9th Cir.\n2019) (en banc) (quoting Kremen, 325 F.3d at 1037–38).\nHere, we conclude that it is prudent to certify the question of\nDynamex’s retroactivity to the California Supreme Court.\nWe do so for two reasons.\n\n First, in our now-withdrawn opinion, we rejected Jan-\nPro’s argument that the doctrines of res judicata and law of\nthe case bar Plaintiffs from contending that they are\nemployees under the ABC test. See 923 F.3d at 583–86. We\nlikewise rejected their contention that a retroactive\napplication would violate its federal due process rights. See\nid. at 588–90. Finally, we held that if Dynamex does apply,\nthe district court’s reliance on Patterson and the “special\nfeatures of the franchise relationship” was misplaced. See\nid. at 594–95. We continue to adhere to those conclusions\nand incorporate them here by reference. See Vazquez v. Jan-\nPro Int’l, Inc., __ F.3d __ (9th Cir. 2019). Accordingly, the\nquestion of whether Dynamex applies retroactively “could\ndetermine the outcome” of this appeal. Cal. R. Ct. 8.548(a).\n\n Second, in resolving the parties’ competing contentions,\nour task, as a federal court sitting in diversity, is “to\napproximate state law as closely as possible in order to make\nsure that the vindication of the state right is without\ndiscrimination because of the federal forum.” Murray,\n\f8 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\n\n924 F.3d at 1071 (quoting Ticknor v. Choice Hotels Int’l,\nInc., 265 F.3d 931, 939 (9th Cir. 2001)). If a state’s highest\ncourt has not spoken on an issue, “then we must predict how\nthe state’s highest court would decide” the issue. Id. Or, “if\nstate law permits it, we may exercise our discretion to certify\na question to the state’s highest court.” Id. The question of\nDynamex’s retroactive application has potentially broad\nramifications for those who have been doing business in\nCalifornia, but the question has not been answered by the\nCalifornia Supreme Court. See Cal. R. Ct. 8.548(a)(2). 2 As\ndiscussed, Dynamex enunciated anew a test for analyzing\nwhether a worker is an employee under California wage\norders. According to Jan-Pro and amici, that test, if it applies\nretroactively, could lead to substantially greater liability for\nCalifornia businesses, for conduct that occurred before\nDynamex, than the pre-Dynamex legal regime. In particular,\nthe decision could lead to greater liability in economic\nsectors that rely more heavily on independent contractors.\nFranchising is one such sector, and it is large. There are\nmore than 77,000 franchise establishments employing over\n755,000 people in California. IHS Markit Economics,\nFranchise Business Economic Outlook for 2018 at 28\n(2018), https://www.franchise.org/sites/default/files/Franch\nise_Business_Outlook_Jan_2018.pdf. Others potentially\naffected are small businesses and their employees, as well as\nworkers in the gig economy. Given the potential importance\nof the retroactivity issue to California businesses and\nworkers, and because the question is unsettled, “‘[c]omity\nand federalism counsel that the California Supreme Court,\nrather than this court, should answer’ the certified question.”\n\n 2\n We note, however, that the Court did deny without comment a\npetition by the California Employment Law Council, an amicus, to\nmodify the Dynamex decision to apply prospectively-only. The ABC\ntest will thus be applied retrospectively in Dynamex itself.\n\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 9\n\nRobinson v. Lewis, 795 F.3d 926, 928 (9th Cir. 2015)\n(quoting Munson v. Del Taco, Inc., 522 F.3d 997, 999 (9th\nCir. 2008)); see also Murray, 924 F.3d at 1072.\n\n In asking the California Supreme Court to resolve this\nquestion, we respectfully direct it to our own analysis in the\nwithdrawn opinion to the extent that the Court may find it\nhelpful. See 923 F.3d at 586–88. We also respectfully direct\nit to the voluminous briefs of the parties and amici. To that\nend, we GRANT Plaintiffs’ motion to take judicial notice of\na hearing transcript in Juarez v. Jani-King of Cal., Inc., No.\n4:09-cv-03495, Dkt. No. 240 (N.D. Cal. Dec. 14, 2018), in\nwhich Judge Yvonne Gonzalez-Rodgers reasoned that\nDynamex applies retroactively (Dkt. No. 111). We likewise\nGRANT the California Employment Law Council’s motion\nto file an amicus brief (Dkt. No. 97).\n\n ***\n\n In light of the foregoing, we ask the California Supreme\nCourt to answer the following question: Does Dynamex\nOperations West Inc. v. Superior Court, 416 P.3d 1 (Cal.\n2018), apply retroactively?\n\n III\n\n We provide the following information as required by\nCalifornia Rule of Court 8.548(b)(1).\n\n The title of this case is GERARDO VAZQUEZ,\nGLORIA ROMAN, and JUAN AGUILAR, Plaintiffs-\nAppellants v. JAN-PRO FRANCHISING\nINTERNATIONAL, INC., Defendant-Appellee.\n\n The case number in our court is 17-16096.\n\f10 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\n\n Plaintiffs-Appellants Gerardo Vazquez, Gloria Roman,\nand Juan Aguilar are represented by the following counsel:\n\n Shannon Liss-Riordan\n Lichten & Liss-Riordan, P.C.\n 729 Boylston Street, Suite 2000\n Boston, MA 02116\n\n Defendant-Appellee Jan-Pro Franchising International,\nInc. is represented by the following counsel:\n\n Theodore J. Boutrous, Jr., Samuel Eckman, and Theane\n Evangelis\n Gibson, Dunn & Crutcher LLP\n 333 South Grand Avenue\n Los Angeles, CA 90071-3197\n\n Jeffrey Mark Rosin\n O’Hagan Meyer, PLLC\n 111 Huntington Avenue, Suite 2860\n Boston, MA 02199\n\n We designate Gerardo Vazquez, Gloria Roman, and Juan\nAguilar as the petitioners if our request for a decision is\ngranted, as they are the appellants before our court.\n\n The Clerk of Court is hereby directed to transmit\nforthwith to the California Supreme Court, under official\nseal of the Ninth Circuit, a copy of this order and request for\ncertification and all relevant briefs and excerpts of record\npursuant to California Rule of Court 8.548. Submission of\nthis case is withdrawn, and the case will be resubmitted\nfollowing receipt of the California Supreme Court’s opinion\non the certified question or notification that it declines to\nanswer the certified question. The Clerk shall\nadministratively close this docket pending a ruling by the\n\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 11\n\nCalifornia Supreme Court regarding the certified question.\nThe panel shall retain jurisdiction over further proceedings\nin this court. The parties shall notify the Clerk of this court\nwithin one week after the California Supreme Court accepts\nor rejects certification. In the event the California Supreme\nCourt grants certification, the parties shall notify the Clerk\nwithin one week after the Court renders its opinion.\n\n CERTIFICATION REQUESTED; SUBMISSION\nVACATED.\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Gerardo Vazquez v. Jan-Pro Franchising Int'l Inc.\\nCourt: U.S. Court of Appeals for the Ninth Circuit\\nDate decided: 2019-09-24\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFOR PUBLICATION\\n\\n UNITED STATES COURT OF APPEALS\\n FOR THE NINTH CIRCUIT\\n\\n GERARDO VAZQUEZ, GLORIA No. 17-16096\\n ROMAN, and JUAN AGUILAR,\\n on behalf of themselves and D.C. No.\\n all other similarly situated, 3:16-cv-05961-WHA\\n Plaintiffs-Appellants,\\n\\n v. ORDER\\n CERTIFYING\\n JAN-PRO FRANCHISING QUESTION TO THE\\n INTERNATIONAL, INC., CALIFORNIA\\n Defendant-Appellee. SUPREME COURT\\n\\n\\n Appeal from the United States District Court\\n for the Northern District of California\\n William Alsup, District Judge, Presiding\\n\\n Argued and Submitted December 18, 2018\\n San Francisco, California\\n\\n Filed September 24, 2019\\n\\n Before: Ronald M. Gould and Marsha S. Berzon, Circuit\\n Judges, and Frederic Block, District Judge. *\\n\\n Order\\n *\\n The Honorable Frederic Block, United States District Judge for the\\nEastern District of New York, sitting by designation.\\n\\f2 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\n SUMMARY **\\n\\n\\n Certified Question to the California Supreme Court\\n\\n The panel certified the following question of state law\\nto the California Supreme Court:\\n\\n Does Dynamex Operations West Inc. v.\\n Superior Court, 416 P.3d 1 (Cal. 2018), apply\\n retroactively?\\n\\n\\n\\n ORDER\\n\\n We ask the California Supreme Court to resolve an open\\nquestion of California state law and certify the following\\nquestion: Does the Court’s decision in Dynamex Operations\\nWest Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018), apply\\nretroactively? Our phrasing of the question should not\\nrestrict the Court’s consideration of the issues involved. The\\nCourt may rephrase the questions as it sees fit in order to\\naddress the contentions of the parties. If the Court agrees to\\ndecide this question, we agree to accept its decision. We\\nrecognize that the Court has a substantial caseload, but we\\nsubmit this question in the interests of comity and because\\nof its significance for California labor law and California\\nbusinesses.\\n\\n\\n\\n\\n **\\n This summary constitutes no part of the opinion of the court. It\\nhas been prepared by court staff for the convenience of the reader.\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 3\\n\\n I\\n\\n This case dates back more than a decade. We provide\\nbackground on the parties, their dispute, the procedural\\nhistory of the case, and their contentions on appeal to frame\\nthe question we are certifying.\\n\\n A\\n\\n Defendant-Appellee, Jan-Pro International Franchising,\\nInc. (“Jan-Pro”) is a company headquartered in Georgia. It\\nlicenses a system for marketing cleaning services to\\n“regional master franchisees,” in multiple countries,\\nincluding the United States. Regional master franchisees\\npurchase franchises for exclusive operations in a given\\nregional area.\\n\\n Regional master franchisees, in turn, are franchisors to\\n“unit franchisees.” Regional master franchisors 1 advertise\\ncleaning services within the geographic region covered by\\nthe franchise, provide bids to potential customers, and\\nprocess payments. Unit franchisees are given the option to\\naccept or reject these bids; for any bids they accept, they\\nperform the actual cleaning under the “Jan-Pro” name. Unit\\nfranchisees are also allowed to solicit their own accounts.\\nAfter royalties and other fees are deducted for Jan-Pro and\\nthe regional master franchisor, the balance is remitted to the\\nunit franchisee. Regional master franchisors also offer\\n“business and management services” to unit franchisees,\\nincluding training, “assistance with customer relations”\\n(which includes finding a substitute unit franchisee if a\\nscheduled unit franchisee is unable to fulfill a contract), and\\n\\n 1\\n We refer to the intermediate entities as either “regional master\\nfranchisees” or “regional master franchisors” depending on whether the\\nfocus is on their relationships with Jan-Pro or with the unit franchisees.\\n\\f4 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\ninvoicing. Some regional master franchisors provide\\ncleaning supplies to their unit franchisees.\\n\\n Jan-Pro is not party to any contract with unit franchisees.\\nJan-Pro contracts with the master franchisors, who then\\ncontract with unit franchisees. Unit franchisees may hire\\ntheir own employees and may act in individual or corporate\\ncapacities.\\n\\n Plaintiffs-Appellants (“Plaintiffs”) are former unit\\nfranchisees who purchased their franchises from two\\ndifferent regional master franchisors. Gerardo Vazquez\\npurchased his franchise from master franchisor New Venture\\nof San Bernardino, LLC for $2,800; Gloria Roman bought\\nhers from Connor-Nolan, Inc. for $2,800; and Juan Aguilar,\\nwith a business partner, acquired his from Connor-Nolan,\\nInc. for $9,000. See Roman v. Jan-Pro Franchising Int’l,\\nInc., No. 16-cv-05961, 2017 WL 2265447, at *1 (N.D. Cal.\\nMay 24, 2017).\\n\\n B\\n\\n This case began in 2008 when three other former Jan-Pro\\nunit franchisees (not Plaintiffs) filed a putative class action\\nin the District Court for the District of Massachusetts. By\\nthe end of the year, there were eight additional plaintiffs,\\nincluding the Plaintiffs here, who are California residents.\\nTogether, they alleged that Jan-Pro had developed a\\nsophisticated “three-tier” franchising model to misclassify\\nits janitors as independent contractors and avoid paying\\nminimum wages and overtime compensation.\\n\\n Because of the variety of state laws involved, the\\nMassachusetts district court chose a test case and, over Jan-\\nPro’s objection, severed Plaintiffs’ cases and sent them to\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 5\\n\\nthe Northern District of California, Plaintiffs’ place of\\nresidence.\\n\\n C\\n\\n Eventually, Jan-Pro moved for summary judgment in\\nthis case. Jan-Pro contended that the California Supreme\\nCourt’s decision in Patterson v. Domino’s Pizza, LLC—a\\ncase concerning the vicarious liability of a franchisor for a\\nsexual assault against an employee of its franchisee,\\n333 P.3d 723 (Cal. 2014)—provided the relevant standard\\nfor determining whether Plaintiffs should be considered\\nemployees of Jan-Pro. See Roman, 2017 WL 2265447,\\nat *2. Plaintiffs, in turn, contended that Martinez v. Combs,\\n231 P.3d 259 (Cal. 2010), provided the standard because this\\nis a wage and hour case. Roman, 2017 WL 2265447, at *2.\\nIn Martinez, the California Supreme Court held that “to\\nemploy,” as used in California wage orders, means “(a) to\\nexercise control over the wages, hours or working\\nconditions, or (b) to suffer or permit to work, or (c) to\\nengage, thereby creating a common law employment\\nrelationship.” Martinez, 231 P.3d at 278.\\n\\n The district court recognized that “no binding decision\\nha[d] addressed the standard applicable to determining\\nwhether a franchisor is an employer of a franchisee,” and “in\\nthe absence of controlling authority” it applied “the Martinez\\nstandard, with the gloss of Patterson.” Roman, 2017 WL\\n2265447, at *3. Analyzing Martinez’s three prongs, the\\ndistrict court held that Plaintiffs had not established a\\ngenuine issue of material fact as to whether they were\\nemployees under any of the three prongs, and the court\\ngranted summary judgment to Jan-Pro. Id. at *5–6.\\n\\n Plaintiffs filed a timely notice of appeal.\\n\\f6 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\n D\\n\\n While this appeal was pending and after briefing was\\ncompleted, the California Supreme Court decided Dynamex.\\nDynamex turned on the definition of “suffer or permit”—i.e.,\\nMartinez’s second prong—for California wage order cases.\\nSpecifically, Dynamex held that a “hiring entity” (a putative\\nemployer) “suffers or permits” a putative employee to work\\nif it cannot overcome the “ABC test.” 416 P.3d at 35. A\\nhiring entity must establish three elements to disprove\\nemployment status: (A) that the worker is free from the\\ncontrol and direction of the hiring entity in connection with\\nthe performance of the work, both under the contract for the\\nperformance of the work and in fact; (B) that the worker\\nperforms work that is outside the usual course of the hiring\\nentity’s business; and (C) that the worker is customarily\\nengaged in an independently established trade, occupation,\\nor business of the same nature as the work performed. Id.\\nat 35.\\n\\n E\\n\\n Because Dynamex postdated the district court’s decision,\\nwe issued an order directing the parties to brief its effect on\\nthe merits of this case. Among other contentions, the parties\\ndisputed whether the decision applies retroactively.\\n\\n On May 2, 2019, we issued a published opinion holding,\\ninter alia, that Dynamex applies retroactively. See 923 F.3d\\n575. On petition for panel rehearing, however, we decided\\nto certify the retroactivity question to the California Supreme\\nCourt. We therefore issued an order withdrawing our prior\\nopinion. See Vazquez v. Jan-Pro Int’l, Inc., __ F.3d __, 2019\\nWL 3271969 (9th Cir. July 22, 2019).\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 7\\n\\n II\\n\\n “We invoke the certification process only after careful\\nconsideration and do not do so lightly.” Kremen v. Cohen,\\n325 F.3d 1035, 1037 (9th Cir. 2003). “In deciding whether\\nto exercise our discretion, we consider: (1) whether the\\nquestion presents ‘important public policy ramifications’ yet\\nunresolved by the state court; (2) whether the issue is new,\\nsubstantial, and of broad application; (3) the state court’s\\ncaseload; and (4) ‘the spirit of comity and federalism.’”\\nMurray v. BEJ Minerals, LLC, 924 F.3d 1070, 1072 (9th Cir.\\n2019) (en banc) (quoting Kremen, 325 F.3d at 1037–38).\\nHere, we conclude that it is prudent to certify the question of\\nDynamex’s retroactivity to the California Supreme Court.\\nWe do so for two reasons.\\n\\n First, in our now-withdrawn opinion, we rejected Jan-\\nPro’s argument that the doctrines of res judicata and law of\\nthe case bar Plaintiffs from contending that they are\\nemployees under the ABC test. See 923 F.3d at 583–86. We\\nlikewise rejected their contention that a retroactive\\napplication would violate its federal due process rights. See\\nid. at 588–90. Finally, we held that if Dynamex does apply,\\nthe district court’s reliance on Patterson and the “special\\nfeatures of the franchise relationship” was misplaced. See\\nid. at 594–95. We continue to adhere to those conclusions\\nand incorporate them here by reference. See Vazquez v. Jan-\\nPro Int’l, Inc., __ F.3d __ (9th Cir. 2019). Accordingly, the\\nquestion of whether Dynamex applies retroactively “could\\ndetermine the outcome” of this appeal. Cal. R. Ct. 8.548(a).\\n\\n Second, in resolving the parties’ competing contentions,\\nour task, as a federal court sitting in diversity, is “to\\napproximate state law as closely as possible in order to make\\nsure that the vindication of the state right is without\\ndiscrimination because of the federal forum.” Murray,\\n\\f8 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\n924 F.3d at 1071 (quoting Ticknor v. Choice Hotels Int’l,\\nInc., 265 F.3d 931, 939 (9th Cir. 2001)). If a state’s highest\\ncourt has not spoken on an issue, “then we must predict how\\nthe state’s highest court would decide” the issue. Id. Or, “if\\nstate law permits it, we may exercise our discretion to certify\\na question to the state’s highest court.” Id. The question of\\nDynamex’s retroactive application has potentially broad\\nramifications for those who have been doing business in\\nCalifornia, but the question has not been answered by the\\nCalifornia Supreme Court. See Cal. R. Ct. 8.548(a)(2). 2 As\\ndiscussed, Dynamex enunciated anew a test for analyzing\\nwhether a worker is an employee under California wage\\norders. According to Jan-Pro and amici, that test, if it applies\\nretroactively, could lead to substantially greater liability for\\nCalifornia businesses, for conduct that occurred before\\nDynamex, than the pre-Dynamex legal regime. In particular,\\nthe decision could lead to greater liability in economic\\nsectors that rely more heavily on independent contractors.\\nFranchising is one such sector, and it is large. There are\\nmore than 77,000 franchise establishments employing over\\n755,000 people in California. IHS Markit Economics,\\nFranchise Business Economic Outlook for 2018 at 28\\n(2018), https://www.franchise.org/sites/default/files/Franch\\nise_Business_Outlook_Jan_2018.pdf. Others potentially\\naffected are small businesses and their employees, as well as\\nworkers in the gig economy. Given the potential importance\\nof the retroactivity issue to California businesses and\\nworkers, and because the question is unsettled, “‘[c]omity\\nand federalism counsel that the California Supreme Court,\\nrather than this court, should answer’ the certified question.”\\n\\n 2\\n We note, however, that the Court did deny without comment a\\npetition by the California Employment Law Council, an amicus, to\\nmodify the Dynamex decision to apply prospectively-only. The ABC\\ntest will thus be applied retrospectively in Dynamex itself.\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 9\\n\\nRobinson v. Lewis, 795 F.3d 926, 928 (9th Cir. 2015)\\n(quoting Munson v. Del Taco, Inc., 522 F.3d 997, 999 (9th\\nCir. 2008)); see also Murray, 924 F.3d at 1072.\\n\\n In asking the California Supreme Court to resolve this\\nquestion, we respectfully direct it to our own analysis in the\\nwithdrawn opinion to the extent that the Court may find it\\nhelpful. See 923 F.3d at 586–88. We also respectfully direct\\nit to the voluminous briefs of the parties and amici. To that\\nend, we GRANT Plaintiffs’ motion to take judicial notice of\\na hearing transcript in Juarez v. Jani-King of Cal., Inc., No.\\n4:09-cv-03495, Dkt. No. 240 (N.D. Cal. Dec. 14, 2018), in\\nwhich Judge Yvonne Gonzalez-Rodgers reasoned that\\nDynamex applies retroactively (Dkt. No. 111). We likewise\\nGRANT the California Employment Law Council’s motion\\nto file an amicus brief (Dkt. No. 97).\\n\\n ***\\n\\n In light of the foregoing, we ask the California Supreme\\nCourt to answer the following question: Does Dynamex\\nOperations West Inc. v. Superior Court, 416 P.3d 1 (Cal.\\n2018), apply retroactively?\\n\\n III\\n\\n We provide the following information as required by\\nCalifornia Rule of Court 8.548(b)(1).\\n\\n The title of this case is GERARDO VAZQUEZ,\\nGLORIA ROMAN, and JUAN AGUILAR, Plaintiffs-\\nAppellants v. JAN-PRO FRANCHISING\\nINTERNATIONAL, INC., Defendant-Appellee.\\n\\n The case number in our court is 17-16096.\\n\\f10 VAZQUEZ V. JAN-PRO FRANCHISING INT’L\\n\\n Plaintiffs-Appellants Gerardo Vazquez, Gloria Roman,\\nand Juan Aguilar are represented by the following counsel:\\n\\n Shannon Liss-Riordan\\n Lichten & Liss-Riordan, P.C.\\n 729 Boylston Street, Suite 2000\\n Boston, MA 02116\\n\\n Defendant-Appellee Jan-Pro Franchising International,\\nInc. is represented by the following counsel:\\n\\n Theodore J. Boutrous, Jr., Samuel Eckman, and Theane\\n Evangelis\\n Gibson, Dunn & Crutcher LLP\\n 333 South Grand Avenue\\n Los Angeles, CA 90071-3197\\n\\n Jeffrey Mark Rosin\\n O’Hagan Meyer, PLLC\\n 111 Huntington Avenue, Suite 2860\\n Boston, MA 02199\\n\\n We designate Gerardo Vazquez, Gloria Roman, and Juan\\nAguilar as the petitioners if our request for a decision is\\ngranted, as they are the appellants before our court.\\n\\n The Clerk of Court is hereby directed to transmit\\nforthwith to the California Supreme Court, under official\\nseal of the Ninth Circuit, a copy of this order and request for\\ncertification and all relevant briefs and excerpts of record\\npursuant to California Rule of Court 8.548. Submission of\\nthis case is withdrawn, and the case will be resubmitted\\nfollowing receipt of the California Supreme Court’s opinion\\non the certified question or notification that it declines to\\nanswer the certified question. The Clerk shall\\nadministratively close this docket pending a ruling by the\\n\\f VAZQUEZ V. JAN-PRO FRANCHISING INT’L 11\\n\\nCalifornia Supreme Court regarding the certified question.\\nThe panel shall retain jurisdiction over further proceedings\\nin this court. The parties shall notify the Clerk of this court\\nwithin one week after the California Supreme Court accepts\\nor rejects certification. In the event the California Supreme\\nCourt grants certification, the parties shall notify the Clerk\\nwithin one week after the Court renders its opinion.\\n\\n CERTIFICATION REQUESTED; SUBMISSION\\nVACATED.\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4483,"cells":{"id":{"kind":"number","value":8444081,"string":"8,444,081"},"name":{"kind":"string","value":"UNITED STATES v. Manuel ROMERO, Jr."},"name_abbreviation":{"kind":"string","value":"United States v. Romero"},"decision_date":{"kind":"string","value":"2019-09-05"},"docket_number":{"kind":"string","value":"No. 18-2180"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Ebel, Lucero, Tymkovich\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415522/\", \"author_raw\": \"\"}, {\"author\": \"\", \"type\": \"035concurrenceinpart\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415523/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"EBEL"},"judge2":{"kind":"string","value":"LUCERO"},"judge3":{"kind":"string","value":"TYMKOVICH"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8444081/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":1,"string":"1"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: UNITED STATES v. Manuel ROMERO, Jr.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-09-05\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: UNITED STATES v. Manuel ROMERO, Jr.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-09-05\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4484,"cells":{"id":{"kind":"number","value":8444082,"string":"8,444,082"},"name":{"kind":"string","value":"Shane WATTS v. Carrie WATTS"},"name_abbreviation":{"kind":"string","value":"Watts v. Watts"},"decision_date":{"kind":"string","value":"2019-09-05"},"docket_number":{"kind":"string","value":"No. 18-4025"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Ebel, Phillips, Tymkovich\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"020lead\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/8415524/\", \"author_raw\": \"\"}]}"},"judge1":{"kind":"string","value":"EBEL"},"judge2":{"kind":"string","value":"PHILLIPS"},"judge3":{"kind":"string","value":"TYMKOVICH"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/8444082/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":0,"string":"0"},"020lead_count":{"kind":"number","value":1,"string":"1"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Shane WATTS v. Carrie WATTS\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-09-05\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Shane WATTS v. Carrie WATTS\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-09-05\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4485,"cells":{"id":{"kind":"number","value":4661630,"string":"4,661,630"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. A.S."},"decision_date":{"kind":"string","value":"2019-09-17"},"docket_number":{"kind":"string","value":"19-9900"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type\": \"010combined\", \"text\": \"\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4438883/\"}]}"},"judge1":{"kind":"string","value":""},"judge2":{"kind":"string","value":""},"judge3":{"kind":"string","value":""},"exactly_three_caps":{"kind":"number","value":0,"string":"0"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4661630/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. A.S.\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-09-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\n\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. A.S.\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-09-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\n\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4486,"cells":{"id":{"kind":"number","value":4662427,"string":"4,662,427"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Holloway"},"decision_date":{"kind":"string","value":"2019-09-19"},"docket_number":{"kind":"string","value":"18-4083"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before HARTZ, MURPHY, and CARSON, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"CARSON, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS September 19, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 18-4083\\n\\n ROBERT LEE HOLLOWAY,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Utah\\n (D.C. Nos. 2:17-CV-00267-RJS & 2:11-CR-00984-RJS-1)\\n _________________________________\\n\\nGregory W. Stevens, Salt Lake City, UT, for the Appellant.\\n\\nRyan D. Tenney (John W. Huber, United States Attorney, with him on the brief), Office\\nof the United States Attorney, District of Utah, Salt Lake City, UT, for the Appellee.\\n _________________________________\\n\\nBefore HARTZ, MURPHY, and CARSON, Circuit Judges.\\n _________________________________\\n\\nCARSON, Circuit Judge.\\n _________________________________\\n\\n A jury convicted Robert Holloway in federal district court of four counts of wire\\n\\nfraud in violation of 18 U.S.C. § 1343 and one count of submitting a false tax return in\\n\\nviolation of 26 U.S.C. § 7206. The district court sentenced Holloway to 225 months’\\n\\nimprisonment, after applying a six-level enhancement for crimes involving 250 or more\\n\\fvictims under U.S.S.G. § 2B1.1(b)(2)(C) (2014).1 After unsuccessfully challenging his\\n\\nconviction and sentence on direct appeal, Holloway filed a 28 U.S.C. § 2255 motion\\n\\nraising three grounds for relief: (1) that a total breakdown of communication between\\n\\nHolloway and his trial counsel caused his trial counsel to perform ineffectively; (2) that\\n\\nhis trial counsel acted ineffectively by failing to argue that the evidence did not support\\n\\nthe district court’s application of the six-level sentencing enhancement; and (3) that the\\n\\nprosecution violated his due process rights by failing to turn over to the defense favorable\\n\\ninformation possessed by a prosecution witness contrary to Brady v. Maryland, 373 U.S.\\n\\n83 (1963). The district court denied Holloway’s § 2255 motion, but granted a certificate\\n\\nof appealability on all three issues. We exercise jurisdiction pursuant to 28 U.S.C. §§\\n\\n1291 and 2253 and affirm.\\n\\n I.\\n\\n Robert Holloway was the president and CEO of US Ventures—a company that\\n\\ntraded in the futures market. Holloway told investors he had developed a special\\n\\nalgorithm that allowed him to trade without losses. He claimed that because of the\\n\\nalgorithm he “could trade the markets and make money whether the market went up or\\n\\nthe market went down.”\\n\\n Holloway’s grandiose claims were false. Instead, for several years Holloway\\n\\noperated US Ventures as a “Ponzi deal”—“taking new clients’ money and paying out\\n\\n\\n\\n\\n 1\\n All references U.S.S.G. § 2B1.1 in this opinion are to the 2014 version.\\n 2\\n\\fsalaries and distributions.” This scheme continued until 2007 when the SEC froze his\\n\\naccounts.\\n\\n Holloway subsequently faced criminal charges. Relevant to this case, federal\\n\\nprosecutors indicted Holloway on four counts of wire fraud and one count of submitting a\\n\\nfalse tax return.\\n\\n Attorney Edwin Wall initially represented Holloway in his criminal case.\\n\\nApproximately a month and a half before trial was set to begin, Wall withdrew as counsel\\n\\nfor Holloway. After Wall’s withdrawal, the district court vacated the trial date due to the\\n\\ncomplexity of the case and appointed attorney Kevin Murphy to represent Holloway.\\n\\n On November 19, 2013, the district court held a status conference hearing with the\\n\\nparties. Murphy mentioned a long-shot chance that Holloway might retain private\\n\\ncounsel before trial. The judge responded directly to Holloway: “[I]f you’re going to\\n\\nretain counsel you’re going to do so by the end of the year. We’re not going to delay this\\n\\ntrial date. And so if you hire a lawyer, you are welcome to do so, but it has got to be by\\n\\nthe end of the calendar year so he can get in and get up to speed and maintain all of the\\n\\ndates that we have got.”\\n\\n In March 2014, Murphy filed a motion requesting a hearing on Holloway’s\\n\\ncompetency. In support of the motion, Murphy attached a competency evaluation and a\\n\\nsupplemental evaluator memorandum written by Dr. Jonathan Bone. During his initial\\n\\ncompetency evaluation, Dr. Bone determined that Holloway exhibited mild paranoia, and\\n\\nfeatures of mania and hypomania. He also noted that Holloway met the criteria for\\n\\n\\n\\n 3\\n\\fNarcissistic Personality Disorder. Yet, he ultimately concluded that Holloway was\\n\\ncompetent to stand trial.\\n\\n In his supplemental evaluation, however, Dr. Bone expressed greater concern\\n\\nregarding Holloway’s disposition and ability to stand trial. Dr. Bone stated that he\\n\\n“believe[d] that [Holloway was] likely compromised with regard to judgment, decision-\\n\\nmaking, and assisting properly in his defense.”\\n\\n For his part, Holloway adamantly opposed an incompetency defense, and his\\n\\ncounsel’s supposed fixation on his mental health frustrated him. Emails between\\n\\nHolloway and Murphy demonstrate the increasing strain these competency evaluations\\n\\nplaced on the attorney-client relationship. For example, Murphy repeatedly sought\\n\\nHolloway’s permission to disclose Dr. Bone’s evaluation to prosecutors. Holloway\\n\\ndenied each request.2 In an email dated March 24, 2014, Murphy requested that\\n\\nHolloway allow him to talk with prosecutors generally about Dr. Bone’s evaluation\\n\\nwithout disclosing it to them. Holloway responded:\\n\\n My answer would be. Since i strongly disagree with the report, especially\\n the assertion of you and Dr. Bone what it was faked My answer is a definate\\n no. I do not want anything regarding this report discussed in anyway shape\\n or form with prosecutors or anyone else. As far as a more definite pea\\n bargain i am not interested in showing our ( your) hand at this time. At such\\n time as it would be appropriate i will let you know.[3]\\n\\n\\n\\n\\n 2\\n Ultimately, Murphy sought ex parte authorization from the magistrate judge\\nto file certain material related to Holloway’s mental health under seal.\\n 3\\n The email excerpts reproduced in this opinion are in their original form. We\\nhave not edited their contents.\\n 4\\n\\f Holloway expressed a similar sentiment in an email dated March 27, 2014, after\\n\\nMurphy again asked for permission to disclose Holloway’s mental health evaluation to\\n\\nprosecutors:\\n\\n You told me that Bone was brought in to evaluate whether or not there was\\n an attempt to defraud. I was also told by you that the investigator was\\n brought in by you on limited resources to investigate potential lead that\\n would bring out the truth. Instead it appears Dr. Bone & the investigators\\n were brought on solely to portray me as mentally ill. If I had of known Dr.\\n Bones background regarding his work with as an expert on the criminally\\n insane or innocence by being mentally ill pleas, and that was your intent from\\n the beginning, I would have gone in completely different direction.\\n\\n Spending the limited resources that the Government allocated to you to\\n attempt to convince me into a plea deal was not part of the intended plan.\\n We have now wasted 7 months of my life to be nowhere. Being creative, not\\n being like everyone else in a box does not equate mental illness. I do not\\n appreciate the constant reference to your belief that I am mentally ill or your\\n belief that I faked the results of the test merely because the results did not\\n support your theory of the case.\\n\\n Your job is to defend me not package me for the purpose of an easy plea. In\\n my last meeting with you & Dr. Bone I felt like I was ambushed. The\\n accusations and language used by both of you which is still continuing is\\n what I would expect from an accuser not from my counsel. The last 7 months\\n should have been spent addressing the facts of the case rather than looking\\n for the simple way out. Early on it is apparent you bought into the\\n Government side of the case rather than attacking it or addressing my side.\\n\\n With what little time we have we need to spend it building my case. To show\\n Government that report is of no benefit to my case. Rather showing that each\\n of the Government witnesses have a reason to lie, that I did not intently\\n mislead any investor and that the Governments attempt to make me look like\\n the ringmaster is not true.\\n\\n On March 31, 2014, Murphy asked Holloway if he would agree to a second\\n\\npsychological evaluation. Holloway wrote back:\\n\\n It has been my written and verbal direction since retaining you to seek out\\n the truth that would prove same and get closure for me and my family.\\n\\n 5\\n\\f Instead it seems evident that your intent is to take the easy road, try to prove\\n me insane, dump me and go on with your law practice. After multiple emails\\n and verbal instructions to cease the insults, and personal attacks yet you\\n continue. I will ask you one more time to stop the attacks. It is apparent that\\n you have no interest in defending me . . . spending 7 months doing nothing\\n to same. If you want out . . . get me a large delay and i will figure it out\\n myself. Its apparent the person who is afraid of the Prosecutor is you not me.\\n\\n Answer is again no . . . Had i known you were going to this focused on trying\\n to ambush and almost extort me into saying uncle i would have never agreed.\\n Had i known the background of Bone whos deal is criminal insane plea . . .\\n same\\n\\nThe same day, Murphy filed the motion seeking a hearing on the competency issue.\\n\\n On April 4, 2014, a federal magistrate judge held a status hearing. After\\n\\nreviewing Murphy’s motion on competency and hearing from both parties, the judge\\n\\nissued an Order for Competency Evaluation.\\n\\n Scheduling the court-ordered competency evaluation caused even more friction\\n\\nbetween Holloway and Murphy. Holloway was adamant that the evaluation not be\\n\\nscheduled over a weekend and that he be given several weeks’ notice so that he could\\n\\ntake the best flights. He also pointed out to Murphy that the prosecutors scheduled the\\n\\nevaluation over Easter weekend, and asked Murphy to request different dates. Murphy\\n\\nfollowed up with prosecutors on Holloway’s request and later informed Holloway that\\n\\nthey “refuse to re-schedule the competency examination dates, even though I reminded\\n\\nthem it is Easter weekend. They are making arrangements to pay your air fare to come\\n\\nhere for the examination.”\\n\\n Dr. Noel Gardner evaluated Holloway on April 19, 2014. He determined that\\n\\nHolloway has “situational[ly] paranoid interpersonal perspectives” and has a “narcissistic\\n\\n\\n 6\\n\\fpersonality makeup.” He also concluded that Holloway has a “very mild form of\\n\\npersistent hypomania.” But despite these conditions, Dr. Garner concluded that\\n\\nHolloway “has the capacity but not the willingness to carefully assess [his] legal options”\\n\\nand that Holloway did not have a “mental disease or defect” that would render him\\n\\nincompetent “to stand trial.”\\n\\n On June 3, 2014, the district court held another status conference hearing.4 The\\n\\ndistrict court invited Holloway to address the issue of his competency. Holloway stated:\\n\\n Well, Your Honor, I trust the direction that—that my counsel is taking. I\\n certainly feel no lack of competency in going to court and telling the real\\n story, and have no lack of confidence that when we get there we’re going to\\n be able to prove innocence. So I’m not—I’m not—I certainly don’t want to\\n be—you know, I’m ready to go. I mean I have—I have no desire to\\n (unintelligible) negate my right to be able to have a fair trial. So I’m sure we\\n don’t want to go down that road.\\n\\n At the hearing, Holloway also told the district court that he had not seen a\\n\\ncopy of Dr. Bone’s evaluation, although he asked for a copy, and that he learned of\\n\\nthe results from Dr. Garner’s evaluation during the hearing. The district court\\n\\neventually found that Holloway was competent to stand trial.\\n\\n The day after the hearing, Holloway expressed his anger regarding Murphy’s\\n\\nfocus on competency. Holloway emailed Murphy that:\\n\\n The competency fiasco is not behind us . . . It was your tact not mine. As far\\n as i am concerned and it is agreed by a great deal of people is we have wasted\\n 1 year of valuable time based on the understanding that you do not\\n understand what the make up of a complex man is. You from day one\\n convicted me and really do believe what the prosecutors have. You have\\n\\n 4\\n Holloway claims that by this time his relationship with Murphy had\\ndeteriorated so much that he and Murphy were no longer communicating by\\ntelephone.\\n 7\\n\\f emphatically stressed that you think i am guilty and mentally ill and argued\\n with the judge that Gardner was wrong . . . . . so it is not behind us.\\n\\n ...\\n\\n I am not mad at you but its not behind us. You humiliated your client by\\n going outside of my instructions and causing this entire delay.\\n\\n Are we going to have a strategy or not? if so what is it.\\n\\n I am calm yet focused. I am not going to sit back and trust your strategy\\n because so far you are on the same side as the Gov trying to bail and have\\n me plea.\\n\\n Holloway also expressed his concern that Murphy should have spent more time\\n\\nformulating a defense, stating that “[w]e clearly should have been preparing for trial 9\\n\\nmonths ago instead of this last minute deal. I am not happy with how this is going.”\\n\\n Ultimately, Holloway retained private counsel without informing Murphy. On\\n\\nJuly 23, 2014, six days before trial was set to start, the prosecutors in this case received a\\n\\ncall from attorney Rebecca Skordas informing them that she had just received a retainer\\n\\nto represent Holloway. She also informed the prosecutors that Holloway had asked her to\\n\\nrequest a trial continuance. On July 25, 2014, prosecutors informed the district court of\\n\\nthis development. That same day, Murphy filed a motion to withdraw as Holloway’s\\n\\ncounsel. The motion stated:\\n\\n Without passing judgment upon the propriety of defendant Holloway’s\\n request, it does behoove defense counsel, as a matter of courtesy, to present\\n the request to this Court. Also, as this motion was being drafted, defense\\n counsel received the prosecution’s sixteen-page “Notice of Defendant’s\\n Potential Motion to Substitute Counsel and Move for at [sic] Trial\\n Continuance.”\\n\\n ...\\n\\n\\n 8\\n\\f The prosecutors characterize Defendant’s request as a “last-minute,\\n desperate attempt to manipulate the legal system . . . .” That seems\\n unnecessarily harsh. It will suffice to respond that defendant Holloway’s\\n judgment is suspect.\\n\\n The district court held a hearing on the motion and the final pretrial conference on\\n\\nJuly 28, 2014. The district court was prepared to permit Skordas to enter an appearance\\n\\nas Holloway’s counsel, but after a recess, Holloway agreed to proceed to trial with\\n\\nMurphy and Murphy’s co-counsel. The district court denied Holloway’s motion to\\n\\ncontinue the trial and denied Murphy’s motion to withdraw. The case proceeded to trial\\n\\nas planned.\\n\\n During the government’s case-in-chief, it called witnesses who testified regarding\\n\\nthe numbers of investors in US Ventures. Four main investor groups invested in US\\n\\nVentures. Representatives of each group testified at trial that their groups lost money.\\n\\nAlthough each group received some money back from their investments, representatives\\n\\nof each group testified that collectively each group lost money during Holloway’s\\n\\nscheme. Their testimony indicated that at least 363 individual investors invested in US\\n\\nVentures.5\\n\\n\\n\\n 5\\n Robert Andres, head of Winsome Investment Trust, testified that Winsome\\nInvestment Trust had “about 239, 240, 260” individual investors. Klein testified that\\nthe bank records showed that Winsome Trust investors gave Holloway $24.7 million,\\nbut they received only $14.5 million back.\\n\\n David Story, majority owner of US Ventures International, testified that US\\nVentures International had “approximately a hundred individual investors.” Klein\\ntestified that US Ventures International investors gave Holloway approximately\\n$4.45 million, but they received only approximately $3.39 million back.\\n\\n 9\\n\\f Roy Klein testified at trial. Klein was the “court appointed receiver” in the related\\n\\ncivil matter recovering funds. The government explained that it called Klein “only as a\\n\\nsummary witness of the bank records.”\\n\\n For his part, Klein testified that he worked on “a related civil matter” and had\\n\\n“familiarity with the bank records of U.S. Ventures.” He explained that his staff had\\n\\nprepared spreadsheets summarizing 5,300 pages of bank records. He then detailed the\\n\\namounts that investor groups had paid Holloway and the amounts they had received back.\\n\\n Holloway had requested that Murphy defend him on a theory of intent, but at the\\n\\nend of trial the jury convicted Holloway on all counts. Holloway then appealed. See\\n\\nUnited States v. Holloway, 826 F.3d 1237 (10th Cir. 2016). He raised four issues, two of\\n\\nwhich are relevant here.\\n\\n First, Holloway raised what we interpreted as an ineffective assistance of counsel\\n\\nclaim based on “a total breakdown in communication between him and his appointed\\n\\ncounsel.” Holloway, 826 F.3d at 1242. We did not, however, reach that issue “because\\n\\n‘[i]neffective assistance of counsel claims should be brought in collateral proceedings,\\n\\nnot on direct appeal.’” Id. at 1243 (quoting United States v. Galloway, 56 F.3d 1239,\\n\\n1240 (10th Cir. 1995)).\\n\\n\\n Duane Johnson and Ralph Thompson of Novus Technologies testified.\\nApproximately twenty-four Novus Technologies investors invested with Holloway.\\nNovus Technologies investors invested approximately $872,000 and they received\\nonly approximately $266,000 back.\\n\\n Casey Hall of RCH-2 did not testify about the number of investors involved.\\nRoy Klein testified that the RCH-2 investors gave Holloway approximately $3.2\\nmillion, but they received only $168,461.90 back.\\n 10\\n\\f Second, Holloway claimed that the district court erred in calculating the applicable\\n\\nGuideline range—specifically, that “there was no evidence presented at any time showing\\n\\nthat each of the 250-plus investors suffered an ‘actual loss.’” Id. at 1250–51; see also\\n\\nU.S.S.G. § 2B1.1(b)(2)(C). But at sentencing Holloway “failed to object, as he [did] on\\n\\nappeal, to the number of ‘victims’ being over 250.” Id. at 1251. Indeed, at sentencing he\\n\\nargued “there was insufficient evidence showing that he was aware there were 250\\n\\n‘victims’ . . . .” Id. (emphasis in original). Because Holloway failed to object to the\\n\\nnumber of victims at sentencing, we reviewed his claim for plain error. We concluded\\n\\nthat “any error was not plain.” Id. at 1251–52.\\n\\n After we affirmed Holloway’s conviction and sentence, Holloway filed a 28\\n\\nU.S.C. § 2255 motion. In his motion, he raised three grounds for relief. First, he\\n\\nreasserted his ineffective assistance of counsel claim based on a complete breakdown\\n\\nof communication between him and his trial counsel. Second, he claimed that the\\n\\ngovernment failed to prove there were 250 or more victims and that by failing to\\n\\nobject Murphy provided ineffective assistance. Finally, Holloway argued the\\n\\nprosecution violated his due process rights by not turning over to the defense\\n\\nfavorable information in the custody of the receiver.\\n\\n The district court denied Holloway’s § 2255 motion, but granted Holloway a\\n\\ncertificate of appealability on all three issues raised in his motion. We address each issue\\n\\nin turn.\\n\\n II.\\n\\n\\n\\n 11\\n\\f “We review the district court’s legal rulings on a § 2255 motion de novo and its\\n\\nfindings of fact for clear error.” United States v. Orange, 447 F.3d 792, 796 (10th Cir.\\n\\n2006).\\n\\n We review mixed questions of law and fact de novo. This includes ineffective\\n\\nassistance of counsel claims and claims brought under Brady v. Maryland, 373 U.S. 83\\n\\n(1963). Hickman v. Spears, 160 F.3d 1269, 1273 (10th Cir. 1998) (ineffective assistance\\n\\nof counsel claims); Banks v. Reynolds, 54 F.3d 1508, 1516 (10th Cir. 1995) (Brady\\n\\nclaims).\\n\\n III.\\n\\n A.\\n\\n Holloway contends a total breakdown in communication existed between him and\\n\\nhis trial counsel and that breakdown caused a violation of his Sixth Amendment right to\\n\\neffective assistance of counsel.\\n\\n Ineffective assistance of counsel claims ordinarily require a showing of both\\n\\ndeficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687\\n\\n(1984). But in “certain circumstances a presumption of ineffectiveness arises making it\\n\\nunnecessary to examine [the] actual performance of counsel.” United States v. Soto\\n\\nHernandez, 849 F.2d 1325, 1328 (10th Cir. 1988) (citing United States v. Cronic, 466\\n\\nU.S. 648, 658 (1984)). This rule may apply when there has been a “complete breakdown\\n\\nin communication between an attorney and client.” Id.\\n\\n While no precise definition exists of “[t]he types of communication breakdowns\\n\\nthat constitute ‘total breakdowns,’” generally “a defendant must put forth evidence of a\\n\\n 12\\n\\fsevere and pervasive conflict with his attorney or evidence that he had such minimal\\n\\ncontact with the attorney that meaningful communication was not possible.” United\\n\\nStates v. Lott (“Lott I”), 310 F.3d 1231, 1249 (10th Cir. 2002). We consider four factors\\n\\nwhen determining whether a complete breakdown in communication rendered a\\n\\ndefendant’s representation constitutionally ineffective:\\n\\n 1) whether the defendant’s motion for new counsel was timely; 2) whether\\n the trial court adequately inquired into defendant’s reasons for making the\\n motion; 3) whether the defendant-attorney conflict was so great that it led to\\n a total lack of communication precluding an adequate defense; and 4)\\n whether the defendant substantially and unreasonably contributed to the\\n communication breakdown.\\n\\nId. at 1250 (citing Romero v. Furlong, 215 F.3d 1107, 1113 (10th Cir. 2000)). Applying\\n\\nthese four Romero factors, the district court concluded that no complete breakdown in\\n\\ncommunication rendered Holloway’s representation ineffective. Holloway v. United\\n\\nStates, No. 2:17-CV-267, 2018 WL 1831835, at *2–3 (D. Utah Apr. 16, 2018).\\n\\n Holloway contends the district court erred when it analyzed each Romero\\n\\nfactor. We now analyze each factor and conclude that no total breakdown in\\n\\ncommunication occurred.\\n\\n First, we consider whether Holloway “made a timely motion requesting new\\n\\ncounsel.” Romero, 215 F.3d at 1113. Holloway contends his motion for new counsel\\n\\nwas timely, even though he filed it six days before a long-scheduled multi-week trial\\n\\nbecause: (1) the district court did not find that he filed the motion simply for the\\n\\npurpose of delay; (2) he was unable to retain counsel of his choice until late in the\\n\\nprocess for financial reasons; and (3) although the deadline for filing a motion to\\n\\n\\n 13\\n\\fsubstitute counsel was set 21 days before trial, his counsel did not inform him of that\\n\\ndeadline.\\n\\n None of these arguments convince us that Holloway’s motion was timely.\\n\\nFirst, while the district court did not find that Holloway filed the motion to delay\\n\\ntrial, throughout the litigation the district court warned Holloway that if he wanted to\\n\\nhire private counsel he needed to do so quickly. (“We’re not going to delay this trial\\n\\ndate. And so if you hire a lawyer . . . it has got to be by the end of the calendar year\\n\\nso he can get in and get up to speed and maintain all of the dates that we have got.”).\\n\\nMore importantly, Holloway submitted an affidavit in support of his § 2255 motion\\n\\nthat stated if he “had known of the 21-day deadline, [he] would have retained Ms.\\n\\nSkordas earlier, because my friend who paid her retainer for me had the funds\\n\\navailable.” Because by his own admission he could have hired counsel earlier, but\\n\\nnevertheless decided to wait until six days before trial, we are convinced the motion\\n\\nwas untimely.\\n\\n Next, we examine whether the trial court adequately inquired into the matter.\\n\\nRomero, 215 F.3d at 1113. Significantly, at the hearing on Murphy’s motion to\\n\\nwithdraw, the district court did not specifically inquire into the total breakdown of\\n\\ncommunication between Holloway and Murphy. Murphy’s motion, however, never\\n\\nexpressly raised the issue. Indeed, Murphy informed the district court that he\\n\\nrequested to withdraw as counsel because Holloway had obtained private counsel\\n\\n(Skordas).\\n\\n\\n\\n 14\\n\\f At the same hearing, the district court granted Murphy a recess after denying\\n\\nthe motion to withdraw so that Murphy, Skordas, and Holloway could meet and\\n\\ndiscuss Skordas’s role. When they returned, Murphy explained to the district court\\n\\nthat Skordas would not make her appearance as Holloway’s counsel at the time.\\n\\nMurphy then represented, in Holloway’s presence and with no objection from\\n\\nHolloway, that they had discussed whether Holloway “might wish to make a record\\n\\non his own behalf” in connection with the motion to “[c]ontinue the trial and\\n\\nsubstitute counsel,” but that he had declined.6\\n\\n Under these circumstances, where neither counsel nor the defendant indicated\\n\\nthat a total breakdown of communication existed, and both had an opportunity to do\\n\\nso, we conclude the district court adequately inquired into the matter. See Romero,\\n\\n215 F.3d at 1114 (concluding “we . . . doubt whether the trial court failed to make an\\n\\nadequate inquiry under the circumstances,” where the appellant made an ambiguous\\n\\nstatement that may have put the trial court on notice of his complete breakdown of\\n\\ncommunication claim and where the appellant failed to renew his objection after his\\n\\ncounsel indicated that the trial court’s resolution would adequately resolve any\\n\\nconflict).\\n\\n\\n\\n\\n 6\\n Holloway claims his conflict with Murphy began as early as March 24, 2014.\\nYet, the district court held multiple hearings prior to the hearing on Murphy’s motion\\nto withdraw in which Holloway could have informed the district court of his\\ndispleasure with Murphy’s representation. Recall, Holloway represented to the\\ndistrict court on June 3, 2014 that he “trust[ed] the direction that” Murphy was taking\\nand that he and Murphy were “all good.”\\n 15\\n\\f Third, we consider whether the conflict between Holloway and Murphy was so\\n\\ngreat as to result in a total breakdown of communication precluding an adequate\\n\\ndefense. Romero, 215 F.3d at 1113. Specifically, Holloway argues that:\\n\\n(1) Murphy’s motion to withdraw indicated that his judgment was “suspect”;\\n\\n(2) Murphy repeatedly sought to have him declared incompetent; and (3) Murphy’s\\n\\nbelief that he was incompetent controlled Murphy’s approach to the case and usurped\\n\\nhis right to determine the objective of his case.7 None of Holloway’s arguments\\n\\ncause us to conclude that any conflict between Holloway and Murphy was so great as\\n\\nto result in a total lack of communication precluding an adequate defense.\\n\\n Conflict that results in a total breakdown of communication exists where the\\n\\ndefendant and counsel could not, in any manner, communicate. See, e.g., Brown v.\\n\\nCraven, 424 F.2d 1166, 1170 (9th Cir. 1970) (holding that when a defendant and his\\n\\ncounsel did not communicate because of an “embroiled . . . irreconcilable conflict”\\n\\nthe defendant was “deprive[d] . . . of the effective assistance of . . . counsel . . . .”).\\n\\nA total breakdown can also exist where the defendant and counsel are embroiled in a\\n\\n“stormy [relationship] with quarrels, bad language, threats, and counter-threats.”\\n\\nUnited States v. Williams, 594 F.2d 1258, 1260 (9th Cir. 1979); but see United States\\n\\nv. John Doe No. 1, 272 F.3d 116, 124 (2d Cir. 2001) (concluding that while the\\n\\n\\n\\n 7\\n Holloway also pointed to the fact that Murphy learned that he retained\\nprivate counsel from the government. Because that fact relates to Holloway’s\\nactions, not Murphy’s, we address this argument under the final Romero factor—\\n“whether the defendant substantially and unreasonably contributed to the breakdown in\\ncommunication.” Romero, 215 F.3d at 1113.\\n 16\\n\\frelationship between defendant and counsel “was at times intense as a result of\\n\\n[defendant’s] violent and aggressive nature, the conflict between the two was not ‘so\\n\\ngreat that it . . . resulted in total lack of communication preventing an adequate\\n\\ndefense.’” (quoting United States v. Simeonov, 252 F.3d 238, 241 (2d Cir. 2001)).\\n\\n Meanwhile, certain contacts between a defendant and counsel can establish\\n\\nthat no complete breakdown in communication occurred. For example, in United\\n\\nStates v. Lott (“Lott II”), 433 F.3d 718, 721 (10th Cir. 2006), Lott’s counsel did not\\n\\nprovide Lott with any discovery and never visited Lott in jail. Yet, we concluded\\n\\n“there was not a lack of communication precluding an adequate defense” because:\\n\\n(1) counsel met with Lott and his probation officer in person to prepare the PSR; (2)\\n\\ncounsel had a policy permitting his clients to call him collect from jail at any time,\\n\\nLott was aware of that policy, and Lott made at least one call to counsel; (3) counsel\\n\\nsent Lott letters, “including one attaching a copy of the PSR and asking for comments\\n\\nor corrections;” and (4) counsel met in person with Lott in a holding area before\\n\\nsentencing. Id. at 725; see also United States v. Vaughan, 119 F. App’x 227, 231\\n\\n(10th Cir. 2004) (unpublished disposition cited only for its persuasive value)\\n\\n(concluding that the third Romero factor was not satisfied when counsel argued for\\n\\ntheir client at sentencing).\\n\\n In this case, Holloway claims that Murphy’s description of his judgment as\\n\\n“suspect” evinces the “adversarial divide” between them. The statement arose in\\n\\nMurphy’s motion to withdraw in response to prosecutors’ claims that Holloway\\n\\nrequested a change of counsel in a “last-minute, desperate attempt to manipulate the\\n\\n 17\\n\\flegal system.” Murphy replied, “[t]hat seems unnecessarily harsh. It will suffice to\\n\\nrespond that defendant Holloway’s judgment is suspect.”\\n\\n Referring to Holloway’s judgment as “suspect” is not the type of egregious\\n\\nconduct in which a presumption of prejudice arises under Cronic. See, e.g.,\\n\\nTurrentine v. Mullin, 390 F.3d 1181, 1208 (10th Cir. 2004) (“This Court has\\n\\nrepeatedly found the Cronic presumption inapplicable where counsel actively\\n\\nparticipated in all phases of the trial proceedings.” (internal quotation marks\\n\\nomitted)); United States v. Coleman, 835 F.3d 606, 612 (6th Cir. 2016) (“[T]he\\n\\npresumption of prejudice applies only in limited, egregious circumstances . . . .” (internal\\n\\nquotation marks omitted)). Indeed, that comment tells us nothing about the\\n\\nrelationship between Holloway and Murphy except that Murphy contested the\\n\\ngovernment’s negative characterization of his client’s motives. Accordingly, we\\n\\nconclude this lone statement by defense counsel does not evince a “severe and\\n\\npervasive” conflict. Lott I, 310 F.3d at 1249.\\n\\n Holloway also argues that his counsel’s focus on competency shows a conflict\\n\\nresulting in a total breakdown in communication. In United States v. Boigegrain, 155\\n\\nF.3d 1181, 1187 (10th Cir. 1998), we held that “[t]he Sixth Amendment . . . [does]\\n\\nnot require that [a] public defender adhere to the defendant’s apparent wish to avoid\\n\\nthe competency issue.” “[W]hen a lawyer has reason to believe that her client may\\n\\nnot be mentally competent to stand trial, she does not render ineffective assistance of\\n\\ncounsel by making her concerns known to the court.” Id. This is because “[t]he\\n\\nConstitution prohibits a court from trying defendants who are mentally incompetent.”\\n\\n 18\\n\\fId. at 1188 (citing Pate v. Robinson, 383 U.S. 375, 378 (1966)). And “[d]efense\\n\\ncounsel is often in the best position to determine whether a defendant’s competency\\n\\nis questionable.” Bryson v. Ward, 187 F.3d 1193, 1201 (10th Cir. 1999), cert.\\n\\ndenied, 529 U.S. 1058 (2000). Thus, “the defendant’s lawyer is not only allowed to\\n\\nraise the competency issue, but, because of the importance of the prohibition on\\n\\ntrying those who cannot understand proceedings against them, she has a professional\\n\\nduty to do so when appropriate.” Boigegrain, 155 F.3d at 1188.\\n\\n Here, Murphy had reason to believe that Holloway might not have been\\n\\nmentally competent to stand trial. Dr. Bone’s evaluation concluded that Holloway\\n\\nwas competent; yet, his supplemental evaluator memorandum expressed his belief\\n\\n“that [Holloway] is likely compromised with regard to judgment, decision-making,\\n\\nand assisting properly in his defense.” But unlike the evaluation, the supplemental\\n\\nevaluator memorandum arose out of a meeting between Dr. Bone, Holloway, and\\n\\nMurphy. The meeting’s purpose was to discuss Dr. Bone’s findings from the initial\\n\\nevaluation. The purpose was not to reevaluate Holloway. Yet after that meeting, Dr.\\n\\nBone provided the supplemental evaluator memorandum, in which he described a\\n\\nrenewed concern for Holloway’s competency to stand trial.\\n\\n After receiving the supplemental evaluator memorandum, Murphy\\n\\nappropriately raised Holloway’s competency with the district court in order to seek\\n\\nan additional opinion. And while Holloway criticizes his counsel’s attempts to have\\n\\nhim declared incompetent, he indicated that he understood the purpose of his\\n\\n\\n\\n 19\\n\\fevaluation was to determine if he could form the requisite intent to defraud the\\n\\nvictims.\\n\\n Holloway also asserts that Murphy’s intent-based defense usurped his ability\\n\\nto control the objective of his case. But strategic disputes do not establish conflicts\\n\\nthat support total breakdown in communication claims. United States v. Hutchinson,\\n\\n573 F.3d 1011, 1025 (10th Cir. 2009) (“‘strategic disagreement[s],’ while no doubt\\n\\nunhelpful to a productive working relationship, are ‘not sufficient to show a complete\\n\\nbreakdown in communication.’” (alteration in original) (quoting Lott II, 433 F.3d at\\n\\n725)); Lott I, 310 F.3d at 1249 (“Good cause for substitution of counsel consists of\\n\\nmore than a mere strategic disagreement between a defendant and his attorney . . .\\n\\nrather there must be a total breakdown in communications.” (internal citation\\n\\nomitted)); cf. Hale v. Gibson, 227 F.3d 1298, 1323 (10th Cir. 2000) (concluding that\\n\\nCronic was not implicated where counsel “made a reasonable strategic decision to\\n\\nconcede some involvement by Hale, given the overwhelming evidence presented at\\n\\ntrial, and focused on the extent of his involvement and whether others could have\\n\\nbeen involved”). And defenses pursued (or not pursued) at trial are quintessentially\\n\\nstrategic decisions. Gonzalez v. United States, 553 U.S. 242, 248 (2008)\\n\\n(“[D]ecisions by counsel are generally given effect as to what arguments to\\n\\npursue . . . .”); Anderson v. Attorney Gen. of Kan., 425 F.3d 853, 859 (10th Cir.\\n\\n2005) (“Whether to raise a particular defense is one aspect of trial strategy . . . .”).\\n\\n Here, Holloway expressly represented to Murphy that he wanted to contest the\\n\\nintent element of the wire fraud charges against him. Indeed, Holloway asked\\n\\n 20\\n\\fMurphy to convince the jury that he “did not intent[ionally] mislead any investor.”\\n\\nBecause Holloway sanctioned a defense based on intent, we are not convinced that\\n\\nMurphy “usurped” his ability to define the objective of his defense.8 Accordingly,\\n\\nMurphy’s pursuit of an intent-based defense at trial does not support a complete\\n\\nbreakdown of communication claim.\\n\\n Finally, we consider whether Holloway “substantially and unjustifiably\\n\\ncontributed to the breakdown in communication.” Romero, 215 F.3d at 1113. “A\\n\\ndefendant cannot simply manufacture a breakdown in communication and thereby give\\n\\nrise to a constitutional violation.” Id. at 1114.\\n\\n Holloway contends no evidence exists that his actions contributed to the strained\\n\\ncommunication with counsel, but the record is to the contrary. As Holloway points out,\\n\\nMurphy heard about his retention of private counsel from prosecutors, not from\\n\\n\\n\\n 8\\n In McCoy v. Louisiana, 138 S. Ct. 1500, 1508–11 (2018), the Supreme Court\\nheld that a defendant has an autonomy right (i.e., the “[a]utonomy to decide . . . the\\nobjective of the defense”) to assert actual innocence, and where counsel has violated\\nthat right, no showing of prejudice is necessary. Unlike ineffective assistance of\\ncounsel jurisprudence, “a client’s autonomy, not counsel’s competence, is in issue.”\\nId. at 1510–11. “These are not strategic choices about how best to achieve a client’s\\nobjectives; they are choices about what the client’s objectives in fact are.” Id. at\\n1508 (emphases in original). Holloway relies on McCoy to suggest that counsel\\nusurped Holloway’s right to determine the objective of his defense.\\n\\n Clearly McCoy permits a free-standing autonomy claim. But Holloway did\\nnot present that claim to the district court and the district court did not grant a COA\\nfor such a claim. Further, the Supreme Court recognized in McCoy that the disputes\\nthere “were not strategic disputes about whether to concede an element of a charged\\noffense.” Id. at 1510 (emphasis added). Meanwhile, the disputes here are strategic\\ndisputes. And as noted above, Holloway expressly requested his counsel attack the\\nintent element of the government’s case against him.\\n 21\\n\\fHolloway himself. Holloway chose not to communicate directly with Murphy about an\\n\\nissue that directly affected his representation. Indeed, Holloway stopped taking\\n\\nMurphy’s calls and limited their communication to email. This undoubtedly contributed\\n\\nto a tense relationship. Finally, much of Holloway’s hostility is attributable to the\\n\\ncompetency proceedings, which, as we just concluded, counsel had an obligation to\\n\\npursue.\\n\\n In sum, we conclude that the Romero factors do not support Holloway’s\\n\\ncontention that he suffered a complete breakdown in communication with Murphy that\\n\\nrendered his representation ineffective.\\n\\n B.\\n\\n Holloway also argues that his counsel’s failure to object to a six-level sentencing\\n\\nenhancement for 250 or more victims under U.S.S.G. § 2B1.1(b)(2)(C) deprived him of\\n\\neffective assistance of counsel. As we explained in Holloway’s direct appeal,\\n\\n The [district] court calculated Mr. Holloway’s Guideline range as 188 to 235\\n months and sentenced him to a term of imprisonment of 225 months. Part of\\n that calculation came from a six-level enhancement that applies if a crime\\n “involved 250 or more victims.” U.S.S.G. § 2B1.1(b)(2)(C) (2014). A\\n victim was defined as “any person who sustained any part of the actual loss,”\\n § 2B1.1 n.1, and “actual loss” was defined as “the reasonably foreseeable\\n pecuniary harm that resulted from the offense.” Id. at n.3.\\n\\nHolloway, 826 F.3d at 1250.\\n\\n In applying the enhancement, the district court appears to have extrapolated from\\n\\nthe testimony of seven witnesses that the number of victims exceeded 250. Holloway\\n\\ncontends these witnesses’ testimony did not establish by a preponderance of the evidence\\n\\n\\n\\n 22\\n\\fthe existence of 250 or more victims. Because Holloway believes his counsel overlooked\\n\\nthis objection, he contends his counsel provided ineffective assistance.\\n\\n We evaluate ineffective assistance of counsel claims using the framework\\n\\nprovided in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a\\n\\ndefendant “must show both that his counsel’s performance ‘fell below an objective\\n\\nstandard of reasonableness’ and that ‘the deficient performance prejudiced the defense.’”\\n\\nByrd v. Workman, 645 F.3d 1159, 1167 (10th Cir. 2011) (emphasis omitted) (quoting\\n\\nStrickland, 466 U.S. at 687–88). “Courts are free to address these two prongs in any\\n\\norder, and failure under either is dispositive.” Id. at 1168.\\n\\n “[O]ur review of counsel’s performance under the first prong of Strickland is a\\n\\n‘highly deferential’ one.” Id. (quoting Hooks v. Workman, 606 F.3d 715, 723 (10th Cir.\\n\\n2010)). We employ “a strong presumption that counsel provided effective assistance.”\\n\\nUnited States v. Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2000). To be constitutionally\\n\\ndeficient, counsel’s performance “must have been ‘completely unreasonable, not merely\\n\\nwrong, so that it bears no relationship to a possible defense strategy.’” Hoxsie v. Kerby,\\n\\n108 F.3d 1239, 1246 (10th Cir. 1997) (quoting Hatch v. Oklahoma, 58 F.3d 1447, 1459\\n\\n(10th Cir. 1995)). Indeed, “we start by presuming, absent a showing to the contrary, that\\n\\nan attorney’s conduct is objectively reasonable because it could be considered part of a\\n\\nlegitimate trial strategy.” Bullock v. Carver, 297 F.3d 1036, 1047 (10th Cir. 2002). The\\n\\ndefendant bears the “heavy burden” of overcoming that presumption. Fox v. Ward, 200\\n\\nF.3d 1286, 1295 (10th Cir. 2000). And “the absence of evidence cannot overcome the\\n\\n‘strong presumption that counsel’s conduct [fell] within the wide range of reasonable\\n\\n 23\\n\\fprofessional assistance.’” Burt v. Titlow, 571 U.S. 12, 23 (2013) (alteration in original)\\n\\n(quoting Strickland, 466 U.S. at 689).\\n\\n Here, Holloway failed to establish that his counsel was constitutionally ineffective.\\n\\nHolloway correctly asserts that: (1) testimony at trial established that US Ventures had at\\n\\nleast 363 investors; (2) the government’s case-in-chief only included the testimony of\\n\\nseven investors who testified to their losses during the scheme; and (3) no testimony was\\n\\npresented during trial or at sentencing regarding the specific number of investors who\\n\\nwere made whole before the scheme ended.9 But Holloway has not overcome the\\n\\nstrong presumption that, under all the circumstances, the challenged action “might be\\n\\nconsidered sound trial strategy.” Strickland, 466 U.S. at 689 (emphasis added); cf.\\n\\nLott v. Trammell, 705 F.3d 1167, 1186 (10th Cir. 2013) (“Appellant must\\n\\ndemonstrate . . . that the challenged action could not be considered sound trial\\n\\nstrategy.”). Indeed, Holloway does not even advance an argument in this regard.\\n\\n The strong presumption in favor of attorney competence assumes that counsel\\n\\nmakes a strategic evaluation after considering the relevant costs and benefits of\\n\\ncertain actions. Here, while Holloway’s argument is colorable, the case law is not\\n\\nsettled in this Circuit. In other contexts we have approved reasonable estimates during\\n\\nsentencing. See, e.g., United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005)\\n\\n(“[W]hen the actual drugs . . . are not seized, the trial court may rely upon an estimate to\\n\\n\\n\\n 9\\n We also note that an individual is not a “victim” who suffered an “actual\\nloss” under § 2B1.1(b)(2) if the individual is “fully and timely reimbursed.” See\\nUnited States v. Orr, 567 F.3d 610, 616 (10th Cir. 2009).\\n 24\\n\\festablish the defendant’s guideline offense level so long as the information relied upon\\n\\nhas some basis of support in the facts of the particular case and bears sufficient indicia of\\n\\nreliability.” (internal quotation marks omitted)). But we have not addressed this type of\\n\\nextrapolation. Other circuits have reached different conclusions in analogous\\n\\ncircumstances. Compare United States v. Savarese, 686 F.3d 1, 16 (1st Cir. 2012)\\n\\n(affirming a district court that determined that ten or more credit card companies were\\n\\nvictims under U.S.S.G. § 2B1.1(b)(2)(A) because: (1) the co-conspirators executed\\n\\nfraudulent transactions on 107 credit cards, which each resulted in actual loss to the\\n\\nfinancial institution that issued that card; (2) most credit cards were destroyed after use,\\n\\nbut 23 were issued by five different institutions; (3) there was additional evidence that a\\n\\nsixth issuer was harmed), with United States v. Brown, 771 F.3d 1149, 1160 (9th Cir.\\n\\n2014) (rejecting the argument that “the district court could determine that 100 [out of\\n\\n405] victims had their financial security substantially endangered solely by extrapolating\\n\\nfrom the 27 out of 29 victim impact statements provided to it”). Thus, the benefits of\\n\\nobjecting were unclear.\\n\\n Furthermore, an objection could have harmed Holloway. At sentencing, Murphy\\n\\nsought leniency from the district court, imploring it to depart from the Guideline range to\\n\\naccount for Holloway’s mental proclivities.10 An objection could have resulted in\\n\\nadditional evidence regarding individual victims, which counsel could have reasonably\\n\\n\\n 10\\n The parties did not include the sentencing transcript in the record on appeal.\\nNevertheless, we take judicial notice of district court filings. See United States v.\\nSmalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) (taking judicial notice of district court\\nrecord that was not part of the record on appeal).\\n 25\\n\\fbelieved would reduce the likelihood of leniency. Accordingly, we conclude that\\n\\nHolloway failed to overcome the presumption that his counsel’s actions were strategic.\\n\\nSee Hanson v. Sherrod, 797 F.3d 810, 829 (10th Cir. 2015) (“[W]hen counsel focuses on\\n\\nsome issues to the exclusion of others, there is a strong presumption that he did so for\\n\\ntactical reasons rather than through sheer neglect.” (quoting Yarborough v. Gentry, 540\\n\\nU.S. 1, 8 (2003)).\\n\\n Nevertheless, Holloway argues that “a valid sentencing challenge overlooked by\\n\\ntrial counsel satisfies both prongs of the Strickland analysis.” In support, Holloway relies\\n\\non United States v. Kissick, 69 F.3d 1048 (10th Cir. 1995) and United States v. Glover,\\n\\n97 F.3d 1345 (10th Cir. 1996). Neither case persuades us that Holloway’s counsel was\\n\\nineffective.\\n\\n In Kissick, defense counsel “fail[ed] to challenge the use of a prior conviction to\\n\\nclassify the defendant as a career offender when that prior conviction [was] facially\\n\\ninsufficient” to satisfy the requirements for the career offender classification. Kissick, 69\\n\\nF.3d at 1056 (emphasis added). There, we concluded that counsel’s failure to object\\n\\nsatisfied the deficient performance prong under Strickland. Id. Similarly, in Glover we\\n\\nheld that “[w]hen counsel has unwittingly relieved the government of its burden of proof,\\n\\nparticularly when the evidence of record does not satisfy that burden, it is fair to say\\n\\ncounsel has ‘so undermined the proper functioning of the adversarial process that [it]\\n\\ncannot be relied on as having produced a just result.’” Glover, 97 F.3d at 1349 (alteration\\n\\nin original) (footnote omitted) (quoting Strickland, 466 U.S. at 686). But we emphasized\\n\\n\\n\\n 26\\n\\fthat the sentencing “issue counsel failed to raise was clearly meritorious.” Id. (emphasis\\n\\nadded).\\n\\n In both Kissick and Glover, counsel failed to raise clearly meritorious arguments\\n\\nand there was no indication that the defendant could have been prejudiced if counsel\\n\\nobjected. Here, the objection was not a clear winner and could have prejudiced\\n\\nHolloway. Thus, counsel’s failure to object to the number of victims is reasonably\\n\\nattributable to sentencing strategy. For those reasons, we are not persuaded that either\\n\\nKissick or Glover dictate our resolution of Holloway’s claim.\\n\\n Accordingly, Holloway failed to carry his burden with respect to this claim.\\n\\n IV.\\n\\n Finally, Holloway argues that the prosecution violated his due process rights by\\n\\nfailing to turn over evidence in the receiver’s possession. Holloway seeks all the\\n\\ndocuments in the receiver’s possession. The district court construed this claim as a Brady\\n\\nviolation and denied relief.\\n\\n “[T]he suppression by the prosecution of evidence favorable to an accused . . .\\n\\nviolates due process where the evidence is material either to guilt or to punishment,\\n\\nirrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. To\\n\\nestablish a Brady violation, the defendant bears the burden of establishing that: the\\n\\nprosecution suppressed evidence; the evidence was favorable to the accused; and the\\n\\nevidence was material. Smith v. Sec’y of N.M. Dep’t of Corr., 50 F.3d 801, 824 (10th\\n\\nCir. 1995). The “prosecution” includes “not only the individual prosecutor handling the\\n\\ncase, but also extends to the prosecutor’s entire office, as well as . . . other arms of the\\n\\n 27\\n\\fstate involved in investigative aspects of a particular criminal venture.” Smith, 50 F.3d at\\n\\n824 (internal citation and footnote omitted).\\n\\n Holloway contends that the receiver was a member of the prosecution team, and\\n\\nthus the prosecution had a duty to ask the receiver to provide it with all exculpatory and\\n\\nmaterial documents.11 “A Brady claim fails if the existence of favorable evidence is\\n\\nmerely suspected.” United States v. Erickson, 561 F.3d 1150, 1163 (10th Cir. 2009).\\n\\nThe defendant bears the burden of establishing that the evidence exists. Id. Here,\\n\\nHolloway’s Brady violation fails because he does not even attempt to argue that the\\n\\ndocuments in the receiver’s possession are favorable to him. Indeed, he claims he cannot\\n\\nevaluate favorability because he has not seen the receiver’s documents. Speculation is\\n\\ninsufficient to establish favorability under Brady. United States v. Acosta-Gallardo, 656\\n\\nF.3d 1109, 1117 (10th Cir. 2011) (concluding that the defendant failed to establish\\n\\nfavorability under Brady where “no one knows whether the results [of the fingerprint\\n\\nanalysis] would have been favorable” to the defendant); Sandoval v. Ulibarri, 548 F.3d\\n\\n902, 915 (10th Cir. 2008) (explaining that the defendant had the burden to establish “his\\n\\n\\n\\n\\n 11\\n The district court concluded that the receiver did not fall within the\\nprosecution team because he was an officer of the court. Holloway, 2018 WL\\n1831835, at *4. We have not addressed whether a court-appointed receiver can be a\\nmember of the prosecution team for Brady purposes. Because we resolve this issue on\\nother grounds, we do not reach that question.\\n\\n\\n 28\\n\\f[Brady] theory was more than speculation”). Here, Holloway offers even less than\\n\\nspeculation. Thus, Holloway’s Brady claim necessarily fails.12\\n\\n We note that Holloway seeks access to all the documents in the receiver’s\\n\\npossession. To the extent this request may be construed as a discovery motion, we\\n\\nconclude that he waived the argument. See Adler v. Wal–Mart Stores, Inc., 144 F.3d\\n\\n664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are\\n\\nwaived.”). Holloway’s briefing referenced only a Brady violation, made no mention of\\n\\ndiscovery, and did not cite the proper standard for discovery in § 2255 proceedings. See\\n\\nRule 6(a) of the Rules Governing Section 2255 Proceedings. Indeed, neither party\\n\\nbriefed the issue of whether Holloway is entitled to discovery in the § 2255 context to the\\n\\ndistrict court or on appeal. Accordingly, Holloway waived any argument for discovery.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 12\\n As to materiality, “[u]nder Brady, evidence is material if it creates a\\nreasonable probability that, had the evidence been disclosed to the defense, the result\\nof the proceedings would have been different.” United States v. Acosta-Gallardo,\\n656 F.3d 1109, 1117 (10th Cir. 2011) (internal quotation marks omitted). “A\\nreasonable probability is a probability sufficient to undermine confidence in the\\noutcome.” Id. (quoting Scott v. Mullin, 303 F.3d 1222, 1230 (10th Cir. 2002).\\n\\n Holloway fails to allege that the documents are material. But, even if he had,\\nat trial the prosecution presented overwhelming evidence of Holloway’s guilt,\\nincluding Holloway’s own emails describing his operation of US Ventures as a\\n“Ponzi deal.” We doubt that any documents in the possession of the receiver would\\nundermine our confidence in the outcome of the case, particularly because\\nHolloway’s defense strategy focused on his mental culpability, not on whether he\\nwas engaged in the underlying conduct itself.\\n 29\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4439680/\", \"author_raw\": \"CARSON, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"HARTZ"},"judge2":{"kind":"string","value":"MURPHY"},"judge3":{"kind":"string","value":"CARSON"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"HARTZ\": \", Circuit\", \"MURPHY\": \", Circuit\", \"CARSON\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4662427/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Holloway\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-09-19\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS September 19, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 18-4083\n\n ROBERT LEE HOLLOWAY,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Utah\n (D.C. Nos. 2:17-CV-00267-RJS & 2:11-CR-00984-RJS-1)\n _________________________________\n\nGregory W. Stevens, Salt Lake City, UT, for the Appellant.\n\nRyan D. Tenney (John W. Huber, United States Attorney, with him on the brief), Office\nof the United States Attorney, District of Utah, Salt Lake City, UT, for the Appellee.\n _________________________________\n\nBefore HARTZ, MURPHY, and CARSON, Circuit Judges.\n _________________________________\n\nCARSON, Circuit Judge.\n _________________________________\n\n A jury convicted Robert Holloway in federal district court of four counts of wire\n\nfraud in violation of 18 U.S.C. § 1343 and one count of submitting a false tax return in\n\nviolation of 26 U.S.C. § 7206. The district court sentenced Holloway to 225 months’\n\nimprisonment, after applying a six-level enhancement for crimes involving 250 or more\n\fvictims under U.S.S.G. § 2B1.1(b)(2)(C) (2014).1 After unsuccessfully challenging his\n\nconviction and sentence on direct appeal, Holloway filed a 28 U.S.C. § 2255 motion\n\nraising three grounds for relief: (1) that a total breakdown of communication between\n\nHolloway and his trial counsel caused his trial counsel to perform ineffectively; (2) that\n\nhis trial counsel acted ineffectively by failing to argue that the evidence did not support\n\nthe district court’s application of the six-level sentencing enhancement; and (3) that the\n\nprosecution violated his due process rights by failing to turn over to the defense favorable\n\ninformation possessed by a prosecution witness contrary to Brady v. Maryland, 373 U.S.\n\n83 (1963). The district court denied Holloway’s § 2255 motion, but granted a certificate\n\nof appealability on all three issues. We exercise jurisdiction pursuant to 28 U.S.C. §§\n\n1291 and 2253 and affirm.\n\n I.\n\n Robert Holloway was the president and CEO of US Ventures—a company that\n\ntraded in the futures market. Holloway told investors he had developed a special\n\nalgorithm that allowed him to trade without losses. He claimed that because of the\n\nalgorithm he “could trade the markets and make money whether the market went up or\n\nthe market went down.”\n\n Holloway’s grandiose claims were false. Instead, for several years Holloway\n\noperated US Ventures as a “Ponzi deal”—“taking new clients’ money and paying out\n\n\n\n\n 1\n All references U.S.S.G. § 2B1.1 in this opinion are to the 2014 version.\n 2\n\fsalaries and distributions.” This scheme continued until 2007 when the SEC froze his\n\naccounts.\n\n Holloway subsequently faced criminal charges. Relevant to this case, federal\n\nprosecutors indicted Holloway on four counts of wire fraud and one count of submitting a\n\nfalse tax return.\n\n Attorney Edwin Wall initially represented Holloway in his criminal case.\n\nApproximately a month and a half before trial was set to begin, Wall withdrew as counsel\n\nfor Holloway. After Wall’s withdrawal, the district court vacated the trial date due to the\n\ncomplexity of the case and appointed attorney Kevin Murphy to represent Holloway.\n\n On November 19, 2013, the district court held a status conference hearing with the\n\nparties. Murphy mentioned a long-shot chance that Holloway might retain private\n\ncounsel before trial. The judge responded directly to Holloway: “[I]f you’re going to\n\nretain counsel you’re going to do so by the end of the year. We’re not going to delay this\n\ntrial date. And so if you hire a lawyer, you are welcome to do so, but it has got to be by\n\nthe end of the calendar year so he can get in and get up to speed and maintain all of the\n\ndates that we have got.”\n\n In March 2014, Murphy filed a motion requesting a hearing on Holloway’s\n\ncompetency. In support of the motion, Murphy attached a competency evaluation and a\n\nsupplemental evaluator memorandum written by Dr. Jonathan Bone. During his initial\n\ncompetency evaluation, Dr. Bone determined that Holloway exhibited mild paranoia, and\n\nfeatures of mania and hypomania. He also noted that Holloway met the criteria for\n\n\n\n 3\n\fNarcissistic Personality Disorder. Yet, he ultimately concluded that Holloway was\n\ncompetent to stand trial.\n\n In his supplemental evaluation, however, Dr. Bone expressed greater concern\n\nregarding Holloway’s disposition and ability to stand trial. Dr. Bone stated that he\n\n“believe[d] that [Holloway was] likely compromised with regard to judgment, decision-\n\nmaking, and assisting properly in his defense.”\n\n For his part, Holloway adamantly opposed an incompetency defense, and his\n\ncounsel’s supposed fixation on his mental health frustrated him. Emails between\n\nHolloway and Murphy demonstrate the increasing strain these competency evaluations\n\nplaced on the attorney-client relationship. For example, Murphy repeatedly sought\n\nHolloway’s permission to disclose Dr. Bone’s evaluation to prosecutors. Holloway\n\ndenied each request.2 In an email dated March 24, 2014, Murphy requested that\n\nHolloway allow him to talk with prosecutors generally about Dr. Bone’s evaluation\n\nwithout disclosing it to them. Holloway responded:\n\n My answer would be. Since i strongly disagree with the report, especially\n the assertion of you and Dr. Bone what it was faked My answer is a definate\n no. I do not want anything regarding this report discussed in anyway shape\n or form with prosecutors or anyone else. As far as a more definite pea\n bargain i am not interested in showing our ( your) hand at this time. At such\n time as it would be appropriate i will let you know.[3]\n\n\n\n\n 2\n Ultimately, Murphy sought ex parte authorization from the magistrate judge\nto file certain material related to Holloway’s mental health under seal.\n 3\n The email excerpts reproduced in this opinion are in their original form. We\nhave not edited their contents.\n 4\n\f Holloway expressed a similar sentiment in an email dated March 27, 2014, after\n\nMurphy again asked for permission to disclose Holloway’s mental health evaluation to\n\nprosecutors:\n\n You told me that Bone was brought in to evaluate whether or not there was\n an attempt to defraud. I was also told by you that the investigator was\n brought in by you on limited resources to investigate potential lead that\n would bring out the truth. Instead it appears Dr. Bone & the investigators\n were brought on solely to portray me as mentally ill. If I had of known Dr.\n Bones background regarding his work with as an expert on the criminally\n insane or innocence by being mentally ill pleas, and that was your intent from\n the beginning, I would have gone in completely different direction.\n\n Spending the limited resources that the Government allocated to you to\n attempt to convince me into a plea deal was not part of the intended plan.\n We have now wasted 7 months of my life to be nowhere. Being creative, not\n being like everyone else in a box does not equate mental illness. I do not\n appreciate the constant reference to your belief that I am mentally ill or your\n belief that I faked the results of the test merely because the results did not\n support your theory of the case.\n\n Your job is to defend me not package me for the purpose of an easy plea. In\n my last meeting with you & Dr. Bone I felt like I was ambushed. The\n accusations and language used by both of you which is still continuing is\n what I would expect from an accuser not from my counsel. The last 7 months\n should have been spent addressing the facts of the case rather than looking\n for the simple way out. Early on it is apparent you bought into the\n Government side of the case rather than attacking it or addressing my side.\n\n With what little time we have we need to spend it building my case. To show\n Government that report is of no benefit to my case. Rather showing that each\n of the Government witnesses have a reason to lie, that I did not intently\n mislead any investor and that the Governments attempt to make me look like\n the ringmaster is not true.\n\n On March 31, 2014, Murphy asked Holloway if he would agree to a second\n\npsychological evaluation. Holloway wrote back:\n\n It has been my written and verbal direction since retaining you to seek out\n the truth that would prove same and get closure for me and my family.\n\n 5\n\f Instead it seems evident that your intent is to take the easy road, try to prove\n me insane, dump me and go on with your law practice. After multiple emails\n and verbal instructions to cease the insults, and personal attacks yet you\n continue. I will ask you one more time to stop the attacks. It is apparent that\n you have no interest in defending me . . . spending 7 months doing nothing\n to same. If you want out . . . get me a large delay and i will figure it out\n myself. Its apparent the person who is afraid of the Prosecutor is you not me.\n\n Answer is again no . . . Had i known you were going to this focused on trying\n to ambush and almost extort me into saying uncle i would have never agreed.\n Had i known the background of Bone whos deal is criminal insane plea . . .\n same\n\nThe same day, Murphy filed the motion seeking a hearing on the competency issue.\n\n On April 4, 2014, a federal magistrate judge held a status hearing. After\n\nreviewing Murphy’s motion on competency and hearing from both parties, the judge\n\nissued an Order for Competency Evaluation.\n\n Scheduling the court-ordered competency evaluation caused even more friction\n\nbetween Holloway and Murphy. Holloway was adamant that the evaluation not be\n\nscheduled over a weekend and that he be given several weeks’ notice so that he could\n\ntake the best flights. He also pointed out to Murphy that the prosecutors scheduled the\n\nevaluation over Easter weekend, and asked Murphy to request different dates. Murphy\n\nfollowed up with prosecutors on Holloway’s request and later informed Holloway that\n\nthey “refuse to re-schedule the competency examination dates, even though I reminded\n\nthem it is Easter weekend. They are making arrangements to pay your air fare to come\n\nhere for the examination.”\n\n Dr. Noel Gardner evaluated Holloway on April 19, 2014. He determined that\n\nHolloway has “situational[ly] paranoid interpersonal perspectives” and has a “narcissistic\n\n\n 6\n\fpersonality makeup.” He also concluded that Holloway has a “very mild form of\n\npersistent hypomania.” But despite these conditions, Dr. Garner concluded that\n\nHolloway “has the capacity but not the willingness to carefully assess [his] legal options”\n\nand that Holloway did not have a “mental disease or defect” that would render him\n\nincompetent “to stand trial.”\n\n On June 3, 2014, the district court held another status conference hearing.4 The\n\ndistrict court invited Holloway to address the issue of his competency. Holloway stated:\n\n Well, Your Honor, I trust the direction that—that my counsel is taking. I\n certainly feel no lack of competency in going to court and telling the real\n story, and have no lack of confidence that when we get there we’re going to\n be able to prove innocence. So I’m not—I’m not—I certainly don’t want to\n be—you know, I’m ready to go. I mean I have—I have no desire to\n (unintelligible) negate my right to be able to have a fair trial. So I’m sure we\n don’t want to go down that road.\n\n At the hearing, Holloway also told the district court that he had not seen a\n\ncopy of Dr. Bone’s evaluation, although he asked for a copy, and that he learned of\n\nthe results from Dr. Garner’s evaluation during the hearing. The district court\n\neventually found that Holloway was competent to stand trial.\n\n The day after the hearing, Holloway expressed his anger regarding Murphy’s\n\nfocus on competency. Holloway emailed Murphy that:\n\n The competency fiasco is not behind us . . . It was your tact not mine. As far\n as i am concerned and it is agreed by a great deal of people is we have wasted\n 1 year of valuable time based on the understanding that you do not\n understand what the make up of a complex man is. You from day one\n convicted me and really do believe what the prosecutors have. You have\n\n 4\n Holloway claims that by this time his relationship with Murphy had\ndeteriorated so much that he and Murphy were no longer communicating by\ntelephone.\n 7\n\f emphatically stressed that you think i am guilty and mentally ill and argued\n with the judge that Gardner was wrong . . . . . so it is not behind us.\n\n ...\n\n I am not mad at you but its not behind us. You humiliated your client by\n going outside of my instructions and causing this entire delay.\n\n Are we going to have a strategy or not? if so what is it.\n\n I am calm yet focused. I am not going to sit back and trust your strategy\n because so far you are on the same side as the Gov trying to bail and have\n me plea.\n\n Holloway also expressed his concern that Murphy should have spent more time\n\nformulating a defense, stating that “[w]e clearly should have been preparing for trial 9\n\nmonths ago instead of this last minute deal. I am not happy with how this is going.”\n\n Ultimately, Holloway retained private counsel without informing Murphy. On\n\nJuly 23, 2014, six days before trial was set to start, the prosecutors in this case received a\n\ncall from attorney Rebecca Skordas informing them that she had just received a retainer\n\nto represent Holloway. She also informed the prosecutors that Holloway had asked her to\n\nrequest a trial continuance. On July 25, 2014, prosecutors informed the district court of\n\nthis development. That same day, Murphy filed a motion to withdraw as Holloway’s\n\ncounsel. The motion stated:\n\n Without passing judgment upon the propriety of defendant Holloway’s\n request, it does behoove defense counsel, as a matter of courtesy, to present\n the request to this Court. Also, as this motion was being drafted, defense\n counsel received the prosecution’s sixteen-page “Notice of Defendant’s\n Potential Motion to Substitute Counsel and Move for at [sic] Trial\n Continuance.”\n\n ...\n\n\n 8\n\f The prosecutors characterize Defendant’s request as a “last-minute,\n desperate attempt to manipulate the legal system . . . .” That seems\n unnecessarily harsh. It will suffice to respond that defendant Holloway’s\n judgment is suspect.\n\n The district court held a hearing on the motion and the final pretrial conference on\n\nJuly 28, 2014. The district court was prepared to permit Skordas to enter an appearance\n\nas Holloway’s counsel, but after a recess, Holloway agreed to proceed to trial with\n\nMurphy and Murphy’s co-counsel. The district court denied Holloway’s motion to\n\ncontinue the trial and denied Murphy’s motion to withdraw. The case proceeded to trial\n\nas planned.\n\n During the government’s case-in-chief, it called witnesses who testified regarding\n\nthe numbers of investors in US Ventures. Four main investor groups invested in US\n\nVentures. Representatives of each group testified at trial that their groups lost money.\n\nAlthough each group received some money back from their investments, representatives\n\nof each group testified that collectively each group lost money during Holloway’s\n\nscheme. Their testimony indicated that at least 363 individual investors invested in US\n\nVentures.5\n\n\n\n 5\n Robert Andres, head of Winsome Investment Trust, testified that Winsome\nInvestment Trust had “about 239, 240, 260” individual investors. Klein testified that\nthe bank records showed that Winsome Trust investors gave Holloway $24.7 million,\nbut they received only $14.5 million back.\n\n David Story, majority owner of US Ventures International, testified that US\nVentures International had “approximately a hundred individual investors.” Klein\ntestified that US Ventures International investors gave Holloway approximately\n$4.45 million, but they received only approximately $3.39 million back.\n\n 9\n\f Roy Klein testified at trial. Klein was the “court appointed receiver” in the related\n\ncivil matter recovering funds. The government explained that it called Klein “only as a\n\nsummary witness of the bank records.”\n\n For his part, Klein testified that he worked on “a related civil matter” and had\n\n“familiarity with the bank records of U.S. Ventures.” He explained that his staff had\n\nprepared spreadsheets summarizing 5,300 pages of bank records. He then detailed the\n\namounts that investor groups had paid Holloway and the amounts they had received back.\n\n Holloway had requested that Murphy defend him on a theory of intent, but at the\n\nend of trial the jury convicted Holloway on all counts. Holloway then appealed. See\n\nUnited States v. Holloway, 826 F.3d 1237 (10th Cir. 2016). He raised four issues, two of\n\nwhich are relevant here.\n\n First, Holloway raised what we interpreted as an ineffective assistance of counsel\n\nclaim based on “a total breakdown in communication between him and his appointed\n\ncounsel.” Holloway, 826 F.3d at 1242. We did not, however, reach that issue “because\n\n‘[i]neffective assistance of counsel claims should be brought in collateral proceedings,\n\nnot on direct appeal.’” Id. at 1243 (quoting United States v. Galloway, 56 F.3d 1239,\n\n1240 (10th Cir. 1995)).\n\n\n Duane Johnson and Ralph Thompson of Novus Technologies testified.\nApproximately twenty-four Novus Technologies investors invested with Holloway.\nNovus Technologies investors invested approximately $872,000 and they received\nonly approximately $266,000 back.\n\n Casey Hall of RCH-2 did not testify about the number of investors involved.\nRoy Klein testified that the RCH-2 investors gave Holloway approximately $3.2\nmillion, but they received only $168,461.90 back.\n 10\n\f Second, Holloway claimed that the district court erred in calculating the applicable\n\nGuideline range—specifically, that “there was no evidence presented at any time showing\n\nthat each of the 250-plus investors suffered an ‘actual loss.’” Id. at 1250–51; see also\n\nU.S.S.G. § 2B1.1(b)(2)(C). But at sentencing Holloway “failed to object, as he [did] on\n\nappeal, to the number of ‘victims’ being over 250.” Id. at 1251. Indeed, at sentencing he\n\nargued “there was insufficient evidence showing that he was aware there were 250\n\n‘victims’ . . . .” Id. (emphasis in original). Because Holloway failed to object to the\n\nnumber of victims at sentencing, we reviewed his claim for plain error. We concluded\n\nthat “any error was not plain.” Id. at 1251–52.\n\n After we affirmed Holloway’s conviction and sentence, Holloway filed a 28\n\nU.S.C. § 2255 motion. In his motion, he raised three grounds for relief. First, he\n\nreasserted his ineffective assistance of counsel claim based on a complete breakdown\n\nof communication between him and his trial counsel. Second, he claimed that the\n\ngovernment failed to prove there were 250 or more victims and that by failing to\n\nobject Murphy provided ineffective assistance. Finally, Holloway argued the\n\nprosecution violated his due process rights by not turning over to the defense\n\nfavorable information in the custody of the receiver.\n\n The district court denied Holloway’s § 2255 motion, but granted Holloway a\n\ncertificate of appealability on all three issues raised in his motion. We address each issue\n\nin turn.\n\n II.\n\n\n\n 11\n\f “We review the district court’s legal rulings on a § 2255 motion de novo and its\n\nfindings of fact for clear error.” United States v. Orange, 447 F.3d 792, 796 (10th Cir.\n\n2006).\n\n We review mixed questions of law and fact de novo. This includes ineffective\n\nassistance of counsel claims and claims brought under Brady v. Maryland, 373 U.S. 83\n\n(1963). Hickman v. Spears, 160 F.3d 1269, 1273 (10th Cir. 1998) (ineffective assistance\n\nof counsel claims); Banks v. Reynolds, 54 F.3d 1508, 1516 (10th Cir. 1995) (Brady\n\nclaims).\n\n III.\n\n A.\n\n Holloway contends a total breakdown in communication existed between him and\n\nhis trial counsel and that breakdown caused a violation of his Sixth Amendment right to\n\neffective assistance of counsel.\n\n Ineffective assistance of counsel claims ordinarily require a showing of both\n\ndeficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687\n\n(1984). But in “certain circumstances a presumption of ineffectiveness arises making it\n\nunnecessary to examine [the] actual performance of counsel.” United States v. Soto\n\nHernandez, 849 F.2d 1325, 1328 (10th Cir. 1988) (citing United States v. Cronic, 466\n\nU.S. 648, 658 (1984)). This rule may apply when there has been a “complete breakdown\n\nin communication between an attorney and client.” Id.\n\n While no precise definition exists of “[t]he types of communication breakdowns\n\nthat constitute ‘total breakdowns,’” generally “a defendant must put forth evidence of a\n\n 12\n\fsevere and pervasive conflict with his attorney or evidence that he had such minimal\n\ncontact with the attorney that meaningful communication was not possible.” United\n\nStates v. Lott (“Lott I”), 310 F.3d 1231, 1249 (10th Cir. 2002). We consider four factors\n\nwhen determining whether a complete breakdown in communication rendered a\n\ndefendant’s representation constitutionally ineffective:\n\n 1) whether the defendant’s motion for new counsel was timely; 2) whether\n the trial court adequately inquired into defendant’s reasons for making the\n motion; 3) whether the defendant-attorney conflict was so great that it led to\n a total lack of communication precluding an adequate defense; and 4)\n whether the defendant substantially and unreasonably contributed to the\n communication breakdown.\n\nId. at 1250 (citing Romero v. Furlong, 215 F.3d 1107, 1113 (10th Cir. 2000)). Applying\n\nthese four Romero factors, the district court concluded that no complete breakdown in\n\ncommunication rendered Holloway’s representation ineffective. Holloway v. United\n\nStates, No. 2:17-CV-267, 2018 WL 1831835, at *2–3 (D. Utah Apr. 16, 2018).\n\n Holloway contends the district court erred when it analyzed each Romero\n\nfactor. We now analyze each factor and conclude that no total breakdown in\n\ncommunication occurred.\n\n First, we consider whether Holloway “made a timely motion requesting new\n\ncounsel.” Romero, 215 F.3d at 1113. Holloway contends his motion for new counsel\n\nwas timely, even though he filed it six days before a long-scheduled multi-week trial\n\nbecause: (1) the district court did not find that he filed the motion simply for the\n\npurpose of delay; (2) he was unable to retain counsel of his choice until late in the\n\nprocess for financial reasons; and (3) although the deadline for filing a motion to\n\n\n 13\n\fsubstitute counsel was set 21 days before trial, his counsel did not inform him of that\n\ndeadline.\n\n None of these arguments convince us that Holloway’s motion was timely.\n\nFirst, while the district court did not find that Holloway filed the motion to delay\n\ntrial, throughout the litigation the district court warned Holloway that if he wanted to\n\nhire private counsel he needed to do so quickly. (“We’re not going to delay this trial\n\ndate. And so if you hire a lawyer . . . it has got to be by the end of the calendar year\n\nso he can get in and get up to speed and maintain all of the dates that we have got.”).\n\nMore importantly, Holloway submitted an affidavit in support of his § 2255 motion\n\nthat stated if he “had known of the 21-day deadline, [he] would have retained Ms.\n\nSkordas earlier, because my friend who paid her retainer for me had the funds\n\navailable.” Because by his own admission he could have hired counsel earlier, but\n\nnevertheless decided to wait until six days before trial, we are convinced the motion\n\nwas untimely.\n\n Next, we examine whether the trial court adequately inquired into the matter.\n\nRomero, 215 F.3d at 1113. Significantly, at the hearing on Murphy’s motion to\n\nwithdraw, the district court did not specifically inquire into the total breakdown of\n\ncommunication between Holloway and Murphy. Murphy’s motion, however, never\n\nexpressly raised the issue. Indeed, Murphy informed the district court that he\n\nrequested to withdraw as counsel because Holloway had obtained private counsel\n\n(Skordas).\n\n\n\n 14\n\f At the same hearing, the district court granted Murphy a recess after denying\n\nthe motion to withdraw so that Murphy, Skordas, and Holloway could meet and\n\ndiscuss Skordas’s role. When they returned, Murphy explained to the district court\n\nthat Skordas would not make her appearance as Holloway’s counsel at the time.\n\nMurphy then represented, in Holloway’s presence and with no objection from\n\nHolloway, that they had discussed whether Holloway “might wish to make a record\n\non his own behalf” in connection with the motion to “[c]ontinue the trial and\n\nsubstitute counsel,” but that he had declined.6\n\n Under these circumstances, where neither counsel nor the defendant indicated\n\nthat a total breakdown of communication existed, and both had an opportunity to do\n\nso, we conclude the district court adequately inquired into the matter. See Romero,\n\n215 F.3d at 1114 (concluding “we . . . doubt whether the trial court failed to make an\n\nadequate inquiry under the circumstances,” where the appellant made an ambiguous\n\nstatement that may have put the trial court on notice of his complete breakdown of\n\ncommunication claim and where the appellant failed to renew his objection after his\n\ncounsel indicated that the trial court’s resolution would adequately resolve any\n\nconflict).\n\n\n\n\n 6\n Holloway claims his conflict with Murphy began as early as March 24, 2014.\nYet, the district court held multiple hearings prior to the hearing on Murphy’s motion\nto withdraw in which Holloway could have informed the district court of his\ndispleasure with Murphy’s representation. Recall, Holloway represented to the\ndistrict court on June 3, 2014 that he “trust[ed] the direction that” Murphy was taking\nand that he and Murphy were “all good.”\n 15\n\f Third, we consider whether the conflict between Holloway and Murphy was so\n\ngreat as to result in a total breakdown of communication precluding an adequate\n\ndefense. Romero, 215 F.3d at 1113. Specifically, Holloway argues that:\n\n(1) Murphy’s motion to withdraw indicated that his judgment was “suspect”;\n\n(2) Murphy repeatedly sought to have him declared incompetent; and (3) Murphy’s\n\nbelief that he was incompetent controlled Murphy’s approach to the case and usurped\n\nhis right to determine the objective of his case.7 None of Holloway’s arguments\n\ncause us to conclude that any conflict between Holloway and Murphy was so great as\n\nto result in a total lack of communication precluding an adequate defense.\n\n Conflict that results in a total breakdown of communication exists where the\n\ndefendant and counsel could not, in any manner, communicate. See, e.g., Brown v.\n\nCraven, 424 F.2d 1166, 1170 (9th Cir. 1970) (holding that when a defendant and his\n\ncounsel did not communicate because of an “embroiled . . . irreconcilable conflict”\n\nthe defendant was “deprive[d] . . . of the effective assistance of . . . counsel . . . .”).\n\nA total breakdown can also exist where the defendant and counsel are embroiled in a\n\n“stormy [relationship] with quarrels, bad language, threats, and counter-threats.”\n\nUnited States v. Williams, 594 F.2d 1258, 1260 (9th Cir. 1979); but see United States\n\nv. John Doe No. 1, 272 F.3d 116, 124 (2d Cir. 2001) (concluding that while the\n\n\n\n 7\n Holloway also pointed to the fact that Murphy learned that he retained\nprivate counsel from the government. Because that fact relates to Holloway’s\nactions, not Murphy’s, we address this argument under the final Romero factor—\n“whether the defendant substantially and unreasonably contributed to the breakdown in\ncommunication.” Romero, 215 F.3d at 1113.\n 16\n\frelationship between defendant and counsel “was at times intense as a result of\n\n[defendant’s] violent and aggressive nature, the conflict between the two was not ‘so\n\ngreat that it . . . resulted in total lack of communication preventing an adequate\n\ndefense.’” (quoting United States v. Simeonov, 252 F.3d 238, 241 (2d Cir. 2001)).\n\n Meanwhile, certain contacts between a defendant and counsel can establish\n\nthat no complete breakdown in communication occurred. For example, in United\n\nStates v. Lott (“Lott II”), 433 F.3d 718, 721 (10th Cir. 2006), Lott’s counsel did not\n\nprovide Lott with any discovery and never visited Lott in jail. Yet, we concluded\n\n“there was not a lack of communication precluding an adequate defense” because:\n\n(1) counsel met with Lott and his probation officer in person to prepare the PSR; (2)\n\ncounsel had a policy permitting his clients to call him collect from jail at any time,\n\nLott was aware of that policy, and Lott made at least one call to counsel; (3) counsel\n\nsent Lott letters, “including one attaching a copy of the PSR and asking for comments\n\nor corrections;” and (4) counsel met in person with Lott in a holding area before\n\nsentencing. Id. at 725; see also United States v. Vaughan, 119 F. App’x 227, 231\n\n(10th Cir. 2004) (unpublished disposition cited only for its persuasive value)\n\n(concluding that the third Romero factor was not satisfied when counsel argued for\n\ntheir client at sentencing).\n\n In this case, Holloway claims that Murphy’s description of his judgment as\n\n“suspect” evinces the “adversarial divide” between them. The statement arose in\n\nMurphy’s motion to withdraw in response to prosecutors’ claims that Holloway\n\nrequested a change of counsel in a “last-minute, desperate attempt to manipulate the\n\n 17\n\flegal system.” Murphy replied, “[t]hat seems unnecessarily harsh. It will suffice to\n\nrespond that defendant Holloway’s judgment is suspect.”\n\n Referring to Holloway’s judgment as “suspect” is not the type of egregious\n\nconduct in which a presumption of prejudice arises under Cronic. See, e.g.,\n\nTurrentine v. Mullin, 390 F.3d 1181, 1208 (10th Cir. 2004) (“This Court has\n\nrepeatedly found the Cronic presumption inapplicable where counsel actively\n\nparticipated in all phases of the trial proceedings.” (internal quotation marks\n\nomitted)); United States v. Coleman, 835 F.3d 606, 612 (6th Cir. 2016) (“[T]he\n\npresumption of prejudice applies only in limited, egregious circumstances . . . .” (internal\n\nquotation marks omitted)). Indeed, that comment tells us nothing about the\n\nrelationship between Holloway and Murphy except that Murphy contested the\n\ngovernment’s negative characterization of his client’s motives. Accordingly, we\n\nconclude this lone statement by defense counsel does not evince a “severe and\n\npervasive” conflict. Lott I, 310 F.3d at 1249.\n\n Holloway also argues that his counsel’s focus on competency shows a conflict\n\nresulting in a total breakdown in communication. In United States v. Boigegrain, 155\n\nF.3d 1181, 1187 (10th Cir. 1998), we held that “[t]he Sixth Amendment . . . [does]\n\nnot require that [a] public defender adhere to the defendant’s apparent wish to avoid\n\nthe competency issue.” “[W]hen a lawyer has reason to believe that her client may\n\nnot be mentally competent to stand trial, she does not render ineffective assistance of\n\ncounsel by making her concerns known to the court.” Id. This is because “[t]he\n\nConstitution prohibits a court from trying defendants who are mentally incompetent.”\n\n 18\n\fId. at 1188 (citing Pate v. Robinson, 383 U.S. 375, 378 (1966)). And “[d]efense\n\ncounsel is often in the best position to determine whether a defendant’s competency\n\nis questionable.” Bryson v. Ward, 187 F.3d 1193, 1201 (10th Cir. 1999), cert.\n\ndenied, 529 U.S. 1058 (2000). Thus, “the defendant’s lawyer is not only allowed to\n\nraise the competency issue, but, because of the importance of the prohibition on\n\ntrying those who cannot understand proceedings against them, she has a professional\n\nduty to do so when appropriate.” Boigegrain, 155 F.3d at 1188.\n\n Here, Murphy had reason to believe that Holloway might not have been\n\nmentally competent to stand trial. Dr. Bone’s evaluation concluded that Holloway\n\nwas competent; yet, his supplemental evaluator memorandum expressed his belief\n\n“that [Holloway] is likely compromised with regard to judgment, decision-making,\n\nand assisting properly in his defense.” But unlike the evaluation, the supplemental\n\nevaluator memorandum arose out of a meeting between Dr. Bone, Holloway, and\n\nMurphy. The meeting’s purpose was to discuss Dr. Bone’s findings from the initial\n\nevaluation. The purpose was not to reevaluate Holloway. Yet after that meeting, Dr.\n\nBone provided the supplemental evaluator memorandum, in which he described a\n\nrenewed concern for Holloway’s competency to stand trial.\n\n After receiving the supplemental evaluator memorandum, Murphy\n\nappropriately raised Holloway’s competency with the district court in order to seek\n\nan additional opinion. And while Holloway criticizes his counsel’s attempts to have\n\nhim declared incompetent, he indicated that he understood the purpose of his\n\n\n\n 19\n\fevaluation was to determine if he could form the requisite intent to defraud the\n\nvictims.\n\n Holloway also asserts that Murphy’s intent-based defense usurped his ability\n\nto control the objective of his case. But strategic disputes do not establish conflicts\n\nthat support total breakdown in communication claims. United States v. Hutchinson,\n\n573 F.3d 1011, 1025 (10th Cir. 2009) (“‘strategic disagreement[s],’ while no doubt\n\nunhelpful to a productive working relationship, are ‘not sufficient to show a complete\n\nbreakdown in communication.’” (alteration in original) (quoting Lott II, 433 F.3d at\n\n725)); Lott I, 310 F.3d at 1249 (“Good cause for substitution of counsel consists of\n\nmore than a mere strategic disagreement between a defendant and his attorney . . .\n\nrather there must be a total breakdown in communications.” (internal citation\n\nomitted)); cf. Hale v. Gibson, 227 F.3d 1298, 1323 (10th Cir. 2000) (concluding that\n\nCronic was not implicated where counsel “made a reasonable strategic decision to\n\nconcede some involvement by Hale, given the overwhelming evidence presented at\n\ntrial, and focused on the extent of his involvement and whether others could have\n\nbeen involved”). And defenses pursued (or not pursued) at trial are quintessentially\n\nstrategic decisions. Gonzalez v. United States, 553 U.S. 242, 248 (2008)\n\n(“[D]ecisions by counsel are generally given effect as to what arguments to\n\npursue . . . .”); Anderson v. Attorney Gen. of Kan., 425 F.3d 853, 859 (10th Cir.\n\n2005) (“Whether to raise a particular defense is one aspect of trial strategy . . . .”).\n\n Here, Holloway expressly represented to Murphy that he wanted to contest the\n\nintent element of the wire fraud charges against him. Indeed, Holloway asked\n\n 20\n\fMurphy to convince the jury that he “did not intent[ionally] mislead any investor.”\n\nBecause Holloway sanctioned a defense based on intent, we are not convinced that\n\nMurphy “usurped” his ability to define the objective of his defense.8 Accordingly,\n\nMurphy’s pursuit of an intent-based defense at trial does not support a complete\n\nbreakdown of communication claim.\n\n Finally, we consider whether Holloway “substantially and unjustifiably\n\ncontributed to the breakdown in communication.” Romero, 215 F.3d at 1113. “A\n\ndefendant cannot simply manufacture a breakdown in communication and thereby give\n\nrise to a constitutional violation.” Id. at 1114.\n\n Holloway contends no evidence exists that his actions contributed to the strained\n\ncommunication with counsel, but the record is to the contrary. As Holloway points out,\n\nMurphy heard about his retention of private counsel from prosecutors, not from\n\n\n\n 8\n In McCoy v. Louisiana, 138 S. Ct. 1500, 1508–11 (2018), the Supreme Court\nheld that a defendant has an autonomy right (i.e., the “[a]utonomy to decide . . . the\nobjective of the defense”) to assert actual innocence, and where counsel has violated\nthat right, no showing of prejudice is necessary. Unlike ineffective assistance of\ncounsel jurisprudence, “a client’s autonomy, not counsel’s competence, is in issue.”\nId. at 1510–11. “These are not strategic choices about how best to achieve a client’s\nobjectives; they are choices about what the client’s objectives in fact are.” Id. at\n1508 (emphases in original). Holloway relies on McCoy to suggest that counsel\nusurped Holloway’s right to determine the objective of his defense.\n\n Clearly McCoy permits a free-standing autonomy claim. But Holloway did\nnot present that claim to the district court and the district court did not grant a COA\nfor such a claim. Further, the Supreme Court recognized in McCoy that the disputes\nthere “were not strategic disputes about whether to concede an element of a charged\noffense.” Id. at 1510 (emphasis added). Meanwhile, the disputes here are strategic\ndisputes. And as noted above, Holloway expressly requested his counsel attack the\nintent element of the government’s case against him.\n 21\n\fHolloway himself. Holloway chose not to communicate directly with Murphy about an\n\nissue that directly affected his representation. Indeed, Holloway stopped taking\n\nMurphy’s calls and limited their communication to email. This undoubtedly contributed\n\nto a tense relationship. Finally, much of Holloway’s hostility is attributable to the\n\ncompetency proceedings, which, as we just concluded, counsel had an obligation to\n\npursue.\n\n In sum, we conclude that the Romero factors do not support Holloway’s\n\ncontention that he suffered a complete breakdown in communication with Murphy that\n\nrendered his representation ineffective.\n\n B.\n\n Holloway also argues that his counsel’s failure to object to a six-level sentencing\n\nenhancement for 250 or more victims under U.S.S.G. § 2B1.1(b)(2)(C) deprived him of\n\neffective assistance of counsel. As we explained in Holloway’s direct appeal,\n\n The [district] court calculated Mr. Holloway’s Guideline range as 188 to 235\n months and sentenced him to a term of imprisonment of 225 months. Part of\n that calculation came from a six-level enhancement that applies if a crime\n “involved 250 or more victims.” U.S.S.G. § 2B1.1(b)(2)(C) (2014). A\n victim was defined as “any person who sustained any part of the actual loss,”\n § 2B1.1 n.1, and “actual loss” was defined as “the reasonably foreseeable\n pecuniary harm that resulted from the offense.” Id. at n.3.\n\nHolloway, 826 F.3d at 1250.\n\n In applying the enhancement, the district court appears to have extrapolated from\n\nthe testimony of seven witnesses that the number of victims exceeded 250. Holloway\n\ncontends these witnesses’ testimony did not establish by a preponderance of the evidence\n\n\n\n 22\n\fthe existence of 250 or more victims. Because Holloway believes his counsel overlooked\n\nthis objection, he contends his counsel provided ineffective assistance.\n\n We evaluate ineffective assistance of counsel claims using the framework\n\nprovided in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a\n\ndefendant “must show both that his counsel’s performance ‘fell below an objective\n\nstandard of reasonableness’ and that ‘the deficient performance prejudiced the defense.’”\n\nByrd v. Workman, 645 F.3d 1159, 1167 (10th Cir. 2011) (emphasis omitted) (quoting\n\nStrickland, 466 U.S. at 687–88). “Courts are free to address these two prongs in any\n\norder, and failure under either is dispositive.” Id. at 1168.\n\n “[O]ur review of counsel’s performance under the first prong of Strickland is a\n\n‘highly deferential’ one.” Id. (quoting Hooks v. Workman, 606 F.3d 715, 723 (10th Cir.\n\n2010)). We employ “a strong presumption that counsel provided effective assistance.”\n\nUnited States v. Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2000). To be constitutionally\n\ndeficient, counsel’s performance “must have been ‘completely unreasonable, not merely\n\nwrong, so that it bears no relationship to a possible defense strategy.’” Hoxsie v. Kerby,\n\n108 F.3d 1239, 1246 (10th Cir. 1997) (quoting Hatch v. Oklahoma, 58 F.3d 1447, 1459\n\n(10th Cir. 1995)). Indeed, “we start by presuming, absent a showing to the contrary, that\n\nan attorney’s conduct is objectively reasonable because it could be considered part of a\n\nlegitimate trial strategy.” Bullock v. Carver, 297 F.3d 1036, 1047 (10th Cir. 2002). The\n\ndefendant bears the “heavy burden” of overcoming that presumption. Fox v. Ward, 200\n\nF.3d 1286, 1295 (10th Cir. 2000). And “the absence of evidence cannot overcome the\n\n‘strong presumption that counsel’s conduct [fell] within the wide range of reasonable\n\n 23\n\fprofessional assistance.’” Burt v. Titlow, 571 U.S. 12, 23 (2013) (alteration in original)\n\n(quoting Strickland, 466 U.S. at 689).\n\n Here, Holloway failed to establish that his counsel was constitutionally ineffective.\n\nHolloway correctly asserts that: (1) testimony at trial established that US Ventures had at\n\nleast 363 investors; (2) the government’s case-in-chief only included the testimony of\n\nseven investors who testified to their losses during the scheme; and (3) no testimony was\n\npresented during trial or at sentencing regarding the specific number of investors who\n\nwere made whole before the scheme ended.9 But Holloway has not overcome the\n\nstrong presumption that, under all the circumstances, the challenged action “might be\n\nconsidered sound trial strategy.” Strickland, 466 U.S. at 689 (emphasis added); cf.\n\nLott v. Trammell, 705 F.3d 1167, 1186 (10th Cir. 2013) (“Appellant must\n\ndemonstrate . . . that the challenged action could not be considered sound trial\n\nstrategy.”). Indeed, Holloway does not even advance an argument in this regard.\n\n The strong presumption in favor of attorney competence assumes that counsel\n\nmakes a strategic evaluation after considering the relevant costs and benefits of\n\ncertain actions. Here, while Holloway’s argument is colorable, the case law is not\n\nsettled in this Circuit. In other contexts we have approved reasonable estimates during\n\nsentencing. See, e.g., United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005)\n\n(“[W]hen the actual drugs . . . are not seized, the trial court may rely upon an estimate to\n\n\n\n 9\n We also note that an individual is not a “victim” who suffered an “actual\nloss” under § 2B1.1(b)(2) if the individual is “fully and timely reimbursed.” See\nUnited States v. Orr, 567 F.3d 610, 616 (10th Cir. 2009).\n 24\n\festablish the defendant’s guideline offense level so long as the information relied upon\n\nhas some basis of support in the facts of the particular case and bears sufficient indicia of\n\nreliability.” (internal quotation marks omitted)). But we have not addressed this type of\n\nextrapolation. Other circuits have reached different conclusions in analogous\n\ncircumstances. Compare United States v. Savarese, 686 F.3d 1, 16 (1st Cir. 2012)\n\n(affirming a district court that determined that ten or more credit card companies were\n\nvictims under U.S.S.G. § 2B1.1(b)(2)(A) because: (1) the co-conspirators executed\n\nfraudulent transactions on 107 credit cards, which each resulted in actual loss to the\n\nfinancial institution that issued that card; (2) most credit cards were destroyed after use,\n\nbut 23 were issued by five different institutions; (3) there was additional evidence that a\n\nsixth issuer was harmed), with United States v. Brown, 771 F.3d 1149, 1160 (9th Cir.\n\n2014) (rejecting the argument that “the district court could determine that 100 [out of\n\n405] victims had their financial security substantially endangered solely by extrapolating\n\nfrom the 27 out of 29 victim impact statements provided to it”). Thus, the benefits of\n\nobjecting were unclear.\n\n Furthermore, an objection could have harmed Holloway. At sentencing, Murphy\n\nsought leniency from the district court, imploring it to depart from the Guideline range to\n\naccount for Holloway’s mental proclivities.10 An objection could have resulted in\n\nadditional evidence regarding individual victims, which counsel could have reasonably\n\n\n 10\n The parties did not include the sentencing transcript in the record on appeal.\nNevertheless, we take judicial notice of district court filings. See United States v.\nSmalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) (taking judicial notice of district court\nrecord that was not part of the record on appeal).\n 25\n\fbelieved would reduce the likelihood of leniency. Accordingly, we conclude that\n\nHolloway failed to overcome the presumption that his counsel’s actions were strategic.\n\nSee Hanson v. Sherrod, 797 F.3d 810, 829 (10th Cir. 2015) (“[W]hen counsel focuses on\n\nsome issues to the exclusion of others, there is a strong presumption that he did so for\n\ntactical reasons rather than through sheer neglect.” (quoting Yarborough v. Gentry, 540\n\nU.S. 1, 8 (2003)).\n\n Nevertheless, Holloway argues that “a valid sentencing challenge overlooked by\n\ntrial counsel satisfies both prongs of the Strickland analysis.” In support, Holloway relies\n\non United States v. Kissick, 69 F.3d 1048 (10th Cir. 1995) and United States v. Glover,\n\n97 F.3d 1345 (10th Cir. 1996). Neither case persuades us that Holloway’s counsel was\n\nineffective.\n\n In Kissick, defense counsel “fail[ed] to challenge the use of a prior conviction to\n\nclassify the defendant as a career offender when that prior conviction [was] facially\n\ninsufficient” to satisfy the requirements for the career offender classification. Kissick, 69\n\nF.3d at 1056 (emphasis added). There, we concluded that counsel’s failure to object\n\nsatisfied the deficient performance prong under Strickland. Id. Similarly, in Glover we\n\nheld that “[w]hen counsel has unwittingly relieved the government of its burden of proof,\n\nparticularly when the evidence of record does not satisfy that burden, it is fair to say\n\ncounsel has ‘so undermined the proper functioning of the adversarial process that [it]\n\ncannot be relied on as having produced a just result.’” Glover, 97 F.3d at 1349 (alteration\n\nin original) (footnote omitted) (quoting Strickland, 466 U.S. at 686). But we emphasized\n\n\n\n 26\n\fthat the sentencing “issue counsel failed to raise was clearly meritorious.” Id. (emphasis\n\nadded).\n\n In both Kissick and Glover, counsel failed to raise clearly meritorious arguments\n\nand there was no indication that the defendant could have been prejudiced if counsel\n\nobjected. Here, the objection was not a clear winner and could have prejudiced\n\nHolloway. Thus, counsel’s failure to object to the number of victims is reasonably\n\nattributable to sentencing strategy. For those reasons, we are not persuaded that either\n\nKissick or Glover dictate our resolution of Holloway’s claim.\n\n Accordingly, Holloway failed to carry his burden with respect to this claim.\n\n IV.\n\n Finally, Holloway argues that the prosecution violated his due process rights by\n\nfailing to turn over evidence in the receiver’s possession. Holloway seeks all the\n\ndocuments in the receiver’s possession. The district court construed this claim as a Brady\n\nviolation and denied relief.\n\n “[T]he suppression by the prosecution of evidence favorable to an accused . . .\n\nviolates due process where the evidence is material either to guilt or to punishment,\n\nirrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. To\n\nestablish a Brady violation, the defendant bears the burden of establishing that: the\n\nprosecution suppressed evidence; the evidence was favorable to the accused; and the\n\nevidence was material. Smith v. Sec’y of N.M. Dep’t of Corr., 50 F.3d 801, 824 (10th\n\nCir. 1995). The “prosecution” includes “not only the individual prosecutor handling the\n\ncase, but also extends to the prosecutor’s entire office, as well as . . . other arms of the\n\n 27\n\fstate involved in investigative aspects of a particular criminal venture.” Smith, 50 F.3d at\n\n824 (internal citation and footnote omitted).\n\n Holloway contends that the receiver was a member of the prosecution team, and\n\nthus the prosecution had a duty to ask the receiver to provide it with all exculpatory and\n\nmaterial documents.11 “A Brady claim fails if the existence of favorable evidence is\n\nmerely suspected.” United States v. Erickson, 561 F.3d 1150, 1163 (10th Cir. 2009).\n\nThe defendant bears the burden of establishing that the evidence exists. Id. Here,\n\nHolloway’s Brady violation fails because he does not even attempt to argue that the\n\ndocuments in the receiver’s possession are favorable to him. Indeed, he claims he cannot\n\nevaluate favorability because he has not seen the receiver’s documents. Speculation is\n\ninsufficient to establish favorability under Brady. United States v. Acosta-Gallardo, 656\n\nF.3d 1109, 1117 (10th Cir. 2011) (concluding that the defendant failed to establish\n\nfavorability under Brady where “no one knows whether the results [of the fingerprint\n\nanalysis] would have been favorable” to the defendant); Sandoval v. Ulibarri, 548 F.3d\n\n902, 915 (10th Cir. 2008) (explaining that the defendant had the burden to establish “his\n\n\n\n\n 11\n The district court concluded that the receiver did not fall within the\nprosecution team because he was an officer of the court. Holloway, 2018 WL\n1831835, at *4. We have not addressed whether a court-appointed receiver can be a\nmember of the prosecution team for Brady purposes. Because we resolve this issue on\nother grounds, we do not reach that question.\n\n\n 28\n\f[Brady] theory was more than speculation”). Here, Holloway offers even less than\n\nspeculation. Thus, Holloway’s Brady claim necessarily fails.12\n\n We note that Holloway seeks access to all the documents in the receiver’s\n\npossession. To the extent this request may be construed as a discovery motion, we\n\nconclude that he waived the argument. See Adler v. Wal–Mart Stores, Inc., 144 F.3d\n\n664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are\n\nwaived.”). Holloway’s briefing referenced only a Brady violation, made no mention of\n\ndiscovery, and did not cite the proper standard for discovery in § 2255 proceedings. See\n\nRule 6(a) of the Rules Governing Section 2255 Proceedings. Indeed, neither party\n\nbriefed the issue of whether Holloway is entitled to discovery in the § 2255 context to the\n\ndistrict court or on appeal. Accordingly, Holloway waived any argument for discovery.\n\n AFFIRMED.\n\n\n\n\n 12\n As to materiality, “[u]nder Brady, evidence is material if it creates a\nreasonable probability that, had the evidence been disclosed to the defense, the result\nof the proceedings would have been different.” United States v. Acosta-Gallardo,\n656 F.3d 1109, 1117 (10th Cir. 2011) (internal quotation marks omitted). “A\nreasonable probability is a probability sufficient to undermine confidence in the\noutcome.” Id. (quoting Scott v. Mullin, 303 F.3d 1222, 1230 (10th Cir. 2002).\n\n Holloway fails to allege that the documents are material. But, even if he had,\nat trial the prosecution presented overwhelming evidence of Holloway’s guilt,\nincluding Holloway’s own emails describing his operation of US Ventures as a\n“Ponzi deal.” We doubt that any documents in the possession of the receiver would\nundermine our confidence in the outcome of the case, particularly because\nHolloway’s defense strategy focused on his mental culpability, not on whether he\nwas engaged in the underlying conduct itself.\n 29\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Holloway\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-09-19\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS September 19, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 18-4083\\n\\n ROBERT LEE HOLLOWAY,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Utah\\n (D.C. Nos. 2:17-CV-00267-RJS & 2:11-CR-00984-RJS-1)\\n _________________________________\\n\\nGregory W. Stevens, Salt Lake City, UT, for the Appellant.\\n\\nRyan D. Tenney (John W. Huber, United States Attorney, with him on the brief), Office\\nof the United States Attorney, District of Utah, Salt Lake City, UT, for the Appellee.\\n _________________________________\\n\\nBefore HARTZ, MURPHY, and CARSON, Circuit Judges.\\n _________________________________\\n\\nCARSON, Circuit Judge.\\n _________________________________\\n\\n A jury convicted Robert Holloway in federal district court of four counts of wire\\n\\nfraud in violation of 18 U.S.C. § 1343 and one count of submitting a false tax return in\\n\\nviolation of 26 U.S.C. § 7206. The district court sentenced Holloway to 225 months’\\n\\nimprisonment, after applying a six-level enhancement for crimes involving 250 or more\\n\\fvictims under U.S.S.G. § 2B1.1(b)(2)(C) (2014).1 After unsuccessfully challenging his\\n\\nconviction and sentence on direct appeal, Holloway filed a 28 U.S.C. § 2255 motion\\n\\nraising three grounds for relief: (1) that a total breakdown of communication between\\n\\nHolloway and his trial counsel caused his trial counsel to perform ineffectively; (2) that\\n\\nhis trial counsel acted ineffectively by failing to argue that the evidence did not support\\n\\nthe district court’s application of the six-level sentencing enhancement; and (3) that the\\n\\nprosecution violated his due process rights by failing to turn over to the defense favorable\\n\\ninformation possessed by a prosecution witness contrary to Brady v. Maryland, 373 U.S.\\n\\n83 (1963). The district court denied Holloway’s § 2255 motion, but granted a certificate\\n\\nof appealability on all three issues. We exercise jurisdiction pursuant to 28 U.S.C. §§\\n\\n1291 and 2253 and affirm.\\n\\n I.\\n\\n Robert Holloway was the president and CEO of US Ventures—a company that\\n\\ntraded in the futures market. Holloway told investors he had developed a special\\n\\nalgorithm that allowed him to trade without losses. He claimed that because of the\\n\\nalgorithm he “could trade the markets and make money whether the market went up or\\n\\nthe market went down.”\\n\\n Holloway’s grandiose claims were false. Instead, for several years Holloway\\n\\noperated US Ventures as a “Ponzi deal”—“taking new clients’ money and paying out\\n\\n\\n\\n\\n 1\\n All references U.S.S.G. § 2B1.1 in this opinion are to the 2014 version.\\n 2\\n\\fsalaries and distributions.” This scheme continued until 2007 when the SEC froze his\\n\\naccounts.\\n\\n Holloway subsequently faced criminal charges. Relevant to this case, federal\\n\\nprosecutors indicted Holloway on four counts of wire fraud and one count of submitting a\\n\\nfalse tax return.\\n\\n Attorney Edwin Wall initially represented Holloway in his criminal case.\\n\\nApproximately a month and a half before trial was set to begin, Wall withdrew as counsel\\n\\nfor Holloway. After Wall’s withdrawal, the district court vacated the trial date due to the\\n\\ncomplexity of the case and appointed attorney Kevin Murphy to represent Holloway.\\n\\n On November 19, 2013, the district court held a status conference hearing with the\\n\\nparties. Murphy mentioned a long-shot chance that Holloway might retain private\\n\\ncounsel before trial. The judge responded directly to Holloway: “[I]f you’re going to\\n\\nretain counsel you’re going to do so by the end of the year. We’re not going to delay this\\n\\ntrial date. And so if you hire a lawyer, you are welcome to do so, but it has got to be by\\n\\nthe end of the calendar year so he can get in and get up to speed and maintain all of the\\n\\ndates that we have got.”\\n\\n In March 2014, Murphy filed a motion requesting a hearing on Holloway’s\\n\\ncompetency. In support of the motion, Murphy attached a competency evaluation and a\\n\\nsupplemental evaluator memorandum written by Dr. Jonathan Bone. During his initial\\n\\ncompetency evaluation, Dr. Bone determined that Holloway exhibited mild paranoia, and\\n\\nfeatures of mania and hypomania. He also noted that Holloway met the criteria for\\n\\n\\n\\n 3\\n\\fNarcissistic Personality Disorder. Yet, he ultimately concluded that Holloway was\\n\\ncompetent to stand trial.\\n\\n In his supplemental evaluation, however, Dr. Bone expressed greater concern\\n\\nregarding Holloway’s disposition and ability to stand trial. Dr. Bone stated that he\\n\\n“believe[d] that [Holloway was] likely compromised with regard to judgment, decision-\\n\\nmaking, and assisting properly in his defense.”\\n\\n For his part, Holloway adamantly opposed an incompetency defense, and his\\n\\ncounsel’s supposed fixation on his mental health frustrated him. Emails between\\n\\nHolloway and Murphy demonstrate the increasing strain these competency evaluations\\n\\nplaced on the attorney-client relationship. For example, Murphy repeatedly sought\\n\\nHolloway’s permission to disclose Dr. Bone’s evaluation to prosecutors. Holloway\\n\\ndenied each request.2 In an email dated March 24, 2014, Murphy requested that\\n\\nHolloway allow him to talk with prosecutors generally about Dr. Bone’s evaluation\\n\\nwithout disclosing it to them. Holloway responded:\\n\\n My answer would be. Since i strongly disagree with the report, especially\\n the assertion of you and Dr. Bone what it was faked My answer is a definate\\n no. I do not want anything regarding this report discussed in anyway shape\\n or form with prosecutors or anyone else. As far as a more definite pea\\n bargain i am not interested in showing our ( your) hand at this time. At such\\n time as it would be appropriate i will let you know.[3]\\n\\n\\n\\n\\n 2\\n Ultimately, Murphy sought ex parte authorization from the magistrate judge\\nto file certain material related to Holloway’s mental health under seal.\\n 3\\n The email excerpts reproduced in this opinion are in their original form. We\\nhave not edited their contents.\\n 4\\n\\f Holloway expressed a similar sentiment in an email dated March 27, 2014, after\\n\\nMurphy again asked for permission to disclose Holloway’s mental health evaluation to\\n\\nprosecutors:\\n\\n You told me that Bone was brought in to evaluate whether or not there was\\n an attempt to defraud. I was also told by you that the investigator was\\n brought in by you on limited resources to investigate potential lead that\\n would bring out the truth. Instead it appears Dr. Bone & the investigators\\n were brought on solely to portray me as mentally ill. If I had of known Dr.\\n Bones background regarding his work with as an expert on the criminally\\n insane or innocence by being mentally ill pleas, and that was your intent from\\n the beginning, I would have gone in completely different direction.\\n\\n Spending the limited resources that the Government allocated to you to\\n attempt to convince me into a plea deal was not part of the intended plan.\\n We have now wasted 7 months of my life to be nowhere. Being creative, not\\n being like everyone else in a box does not equate mental illness. I do not\\n appreciate the constant reference to your belief that I am mentally ill or your\\n belief that I faked the results of the test merely because the results did not\\n support your theory of the case.\\n\\n Your job is to defend me not package me for the purpose of an easy plea. In\\n my last meeting with you & Dr. Bone I felt like I was ambushed. The\\n accusations and language used by both of you which is still continuing is\\n what I would expect from an accuser not from my counsel. The last 7 months\\n should have been spent addressing the facts of the case rather than looking\\n for the simple way out. Early on it is apparent you bought into the\\n Government side of the case rather than attacking it or addressing my side.\\n\\n With what little time we have we need to spend it building my case. To show\\n Government that report is of no benefit to my case. Rather showing that each\\n of the Government witnesses have a reason to lie, that I did not intently\\n mislead any investor and that the Governments attempt to make me look like\\n the ringmaster is not true.\\n\\n On March 31, 2014, Murphy asked Holloway if he would agree to a second\\n\\npsychological evaluation. Holloway wrote back:\\n\\n It has been my written and verbal direction since retaining you to seek out\\n the truth that would prove same and get closure for me and my family.\\n\\n 5\\n\\f Instead it seems evident that your intent is to take the easy road, try to prove\\n me insane, dump me and go on with your law practice. After multiple emails\\n and verbal instructions to cease the insults, and personal attacks yet you\\n continue. I will ask you one more time to stop the attacks. It is apparent that\\n you have no interest in defending me . . . spending 7 months doing nothing\\n to same. If you want out . . . get me a large delay and i will figure it out\\n myself. Its apparent the person who is afraid of the Prosecutor is you not me.\\n\\n Answer is again no . . . Had i known you were going to this focused on trying\\n to ambush and almost extort me into saying uncle i would have never agreed.\\n Had i known the background of Bone whos deal is criminal insane plea . . .\\n same\\n\\nThe same day, Murphy filed the motion seeking a hearing on the competency issue.\\n\\n On April 4, 2014, a federal magistrate judge held a status hearing. After\\n\\nreviewing Murphy’s motion on competency and hearing from both parties, the judge\\n\\nissued an Order for Competency Evaluation.\\n\\n Scheduling the court-ordered competency evaluation caused even more friction\\n\\nbetween Holloway and Murphy. Holloway was adamant that the evaluation not be\\n\\nscheduled over a weekend and that he be given several weeks’ notice so that he could\\n\\ntake the best flights. He also pointed out to Murphy that the prosecutors scheduled the\\n\\nevaluation over Easter weekend, and asked Murphy to request different dates. Murphy\\n\\nfollowed up with prosecutors on Holloway’s request and later informed Holloway that\\n\\nthey “refuse to re-schedule the competency examination dates, even though I reminded\\n\\nthem it is Easter weekend. They are making arrangements to pay your air fare to come\\n\\nhere for the examination.”\\n\\n Dr. Noel Gardner evaluated Holloway on April 19, 2014. He determined that\\n\\nHolloway has “situational[ly] paranoid interpersonal perspectives” and has a “narcissistic\\n\\n\\n 6\\n\\fpersonality makeup.” He also concluded that Holloway has a “very mild form of\\n\\npersistent hypomania.” But despite these conditions, Dr. Garner concluded that\\n\\nHolloway “has the capacity but not the willingness to carefully assess [his] legal options”\\n\\nand that Holloway did not have a “mental disease or defect” that would render him\\n\\nincompetent “to stand trial.”\\n\\n On June 3, 2014, the district court held another status conference hearing.4 The\\n\\ndistrict court invited Holloway to address the issue of his competency. Holloway stated:\\n\\n Well, Your Honor, I trust the direction that—that my counsel is taking. I\\n certainly feel no lack of competency in going to court and telling the real\\n story, and have no lack of confidence that when we get there we’re going to\\n be able to prove innocence. So I’m not—I’m not—I certainly don’t want to\\n be—you know, I’m ready to go. I mean I have—I have no desire to\\n (unintelligible) negate my right to be able to have a fair trial. So I’m sure we\\n don’t want to go down that road.\\n\\n At the hearing, Holloway also told the district court that he had not seen a\\n\\ncopy of Dr. Bone’s evaluation, although he asked for a copy, and that he learned of\\n\\nthe results from Dr. Garner’s evaluation during the hearing. The district court\\n\\neventually found that Holloway was competent to stand trial.\\n\\n The day after the hearing, Holloway expressed his anger regarding Murphy’s\\n\\nfocus on competency. Holloway emailed Murphy that:\\n\\n The competency fiasco is not behind us . . . It was your tact not mine. As far\\n as i am concerned and it is agreed by a great deal of people is we have wasted\\n 1 year of valuable time based on the understanding that you do not\\n understand what the make up of a complex man is. You from day one\\n convicted me and really do believe what the prosecutors have. You have\\n\\n 4\\n Holloway claims that by this time his relationship with Murphy had\\ndeteriorated so much that he and Murphy were no longer communicating by\\ntelephone.\\n 7\\n\\f emphatically stressed that you think i am guilty and mentally ill and argued\\n with the judge that Gardner was wrong . . . . . so it is not behind us.\\n\\n ...\\n\\n I am not mad at you but its not behind us. You humiliated your client by\\n going outside of my instructions and causing this entire delay.\\n\\n Are we going to have a strategy or not? if so what is it.\\n\\n I am calm yet focused. I am not going to sit back and trust your strategy\\n because so far you are on the same side as the Gov trying to bail and have\\n me plea.\\n\\n Holloway also expressed his concern that Murphy should have spent more time\\n\\nformulating a defense, stating that “[w]e clearly should have been preparing for trial 9\\n\\nmonths ago instead of this last minute deal. I am not happy with how this is going.”\\n\\n Ultimately, Holloway retained private counsel without informing Murphy. On\\n\\nJuly 23, 2014, six days before trial was set to start, the prosecutors in this case received a\\n\\ncall from attorney Rebecca Skordas informing them that she had just received a retainer\\n\\nto represent Holloway. She also informed the prosecutors that Holloway had asked her to\\n\\nrequest a trial continuance. On July 25, 2014, prosecutors informed the district court of\\n\\nthis development. That same day, Murphy filed a motion to withdraw as Holloway’s\\n\\ncounsel. The motion stated:\\n\\n Without passing judgment upon the propriety of defendant Holloway’s\\n request, it does behoove defense counsel, as a matter of courtesy, to present\\n the request to this Court. Also, as this motion was being drafted, defense\\n counsel received the prosecution’s sixteen-page “Notice of Defendant’s\\n Potential Motion to Substitute Counsel and Move for at [sic] Trial\\n Continuance.”\\n\\n ...\\n\\n\\n 8\\n\\f The prosecutors characterize Defendant’s request as a “last-minute,\\n desperate attempt to manipulate the legal system . . . .” That seems\\n unnecessarily harsh. It will suffice to respond that defendant Holloway’s\\n judgment is suspect.\\n\\n The district court held a hearing on the motion and the final pretrial conference on\\n\\nJuly 28, 2014. The district court was prepared to permit Skordas to enter an appearance\\n\\nas Holloway’s counsel, but after a recess, Holloway agreed to proceed to trial with\\n\\nMurphy and Murphy’s co-counsel. The district court denied Holloway’s motion to\\n\\ncontinue the trial and denied Murphy’s motion to withdraw. The case proceeded to trial\\n\\nas planned.\\n\\n During the government’s case-in-chief, it called witnesses who testified regarding\\n\\nthe numbers of investors in US Ventures. Four main investor groups invested in US\\n\\nVentures. Representatives of each group testified at trial that their groups lost money.\\n\\nAlthough each group received some money back from their investments, representatives\\n\\nof each group testified that collectively each group lost money during Holloway’s\\n\\nscheme. Their testimony indicated that at least 363 individual investors invested in US\\n\\nVentures.5\\n\\n\\n\\n 5\\n Robert Andres, head of Winsome Investment Trust, testified that Winsome\\nInvestment Trust had “about 239, 240, 260” individual investors. Klein testified that\\nthe bank records showed that Winsome Trust investors gave Holloway $24.7 million,\\nbut they received only $14.5 million back.\\n\\n David Story, majority owner of US Ventures International, testified that US\\nVentures International had “approximately a hundred individual investors.” Klein\\ntestified that US Ventures International investors gave Holloway approximately\\n$4.45 million, but they received only approximately $3.39 million back.\\n\\n 9\\n\\f Roy Klein testified at trial. Klein was the “court appointed receiver” in the related\\n\\ncivil matter recovering funds. The government explained that it called Klein “only as a\\n\\nsummary witness of the bank records.”\\n\\n For his part, Klein testified that he worked on “a related civil matter” and had\\n\\n“familiarity with the bank records of U.S. Ventures.” He explained that his staff had\\n\\nprepared spreadsheets summarizing 5,300 pages of bank records. He then detailed the\\n\\namounts that investor groups had paid Holloway and the amounts they had received back.\\n\\n Holloway had requested that Murphy defend him on a theory of intent, but at the\\n\\nend of trial the jury convicted Holloway on all counts. Holloway then appealed. See\\n\\nUnited States v. Holloway, 826 F.3d 1237 (10th Cir. 2016). He raised four issues, two of\\n\\nwhich are relevant here.\\n\\n First, Holloway raised what we interpreted as an ineffective assistance of counsel\\n\\nclaim based on “a total breakdown in communication between him and his appointed\\n\\ncounsel.” Holloway, 826 F.3d at 1242. We did not, however, reach that issue “because\\n\\n‘[i]neffective assistance of counsel claims should be brought in collateral proceedings,\\n\\nnot on direct appeal.’” Id. at 1243 (quoting United States v. Galloway, 56 F.3d 1239,\\n\\n1240 (10th Cir. 1995)).\\n\\n\\n Duane Johnson and Ralph Thompson of Novus Technologies testified.\\nApproximately twenty-four Novus Technologies investors invested with Holloway.\\nNovus Technologies investors invested approximately $872,000 and they received\\nonly approximately $266,000 back.\\n\\n Casey Hall of RCH-2 did not testify about the number of investors involved.\\nRoy Klein testified that the RCH-2 investors gave Holloway approximately $3.2\\nmillion, but they received only $168,461.90 back.\\n 10\\n\\f Second, Holloway claimed that the district court erred in calculating the applicable\\n\\nGuideline range—specifically, that “there was no evidence presented at any time showing\\n\\nthat each of the 250-plus investors suffered an ‘actual loss.’” Id. at 1250–51; see also\\n\\nU.S.S.G. § 2B1.1(b)(2)(C). But at sentencing Holloway “failed to object, as he [did] on\\n\\nappeal, to the number of ‘victims’ being over 250.” Id. at 1251. Indeed, at sentencing he\\n\\nargued “there was insufficient evidence showing that he was aware there were 250\\n\\n‘victims’ . . . .” Id. (emphasis in original). Because Holloway failed to object to the\\n\\nnumber of victims at sentencing, we reviewed his claim for plain error. We concluded\\n\\nthat “any error was not plain.” Id. at 1251–52.\\n\\n After we affirmed Holloway’s conviction and sentence, Holloway filed a 28\\n\\nU.S.C. § 2255 motion. In his motion, he raised three grounds for relief. First, he\\n\\nreasserted his ineffective assistance of counsel claim based on a complete breakdown\\n\\nof communication between him and his trial counsel. Second, he claimed that the\\n\\ngovernment failed to prove there were 250 or more victims and that by failing to\\n\\nobject Murphy provided ineffective assistance. Finally, Holloway argued the\\n\\nprosecution violated his due process rights by not turning over to the defense\\n\\nfavorable information in the custody of the receiver.\\n\\n The district court denied Holloway’s § 2255 motion, but granted Holloway a\\n\\ncertificate of appealability on all three issues raised in his motion. We address each issue\\n\\nin turn.\\n\\n II.\\n\\n\\n\\n 11\\n\\f “We review the district court’s legal rulings on a § 2255 motion de novo and its\\n\\nfindings of fact for clear error.” United States v. Orange, 447 F.3d 792, 796 (10th Cir.\\n\\n2006).\\n\\n We review mixed questions of law and fact de novo. This includes ineffective\\n\\nassistance of counsel claims and claims brought under Brady v. Maryland, 373 U.S. 83\\n\\n(1963). Hickman v. Spears, 160 F.3d 1269, 1273 (10th Cir. 1998) (ineffective assistance\\n\\nof counsel claims); Banks v. Reynolds, 54 F.3d 1508, 1516 (10th Cir. 1995) (Brady\\n\\nclaims).\\n\\n III.\\n\\n A.\\n\\n Holloway contends a total breakdown in communication existed between him and\\n\\nhis trial counsel and that breakdown caused a violation of his Sixth Amendment right to\\n\\neffective assistance of counsel.\\n\\n Ineffective assistance of counsel claims ordinarily require a showing of both\\n\\ndeficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687\\n\\n(1984). But in “certain circumstances a presumption of ineffectiveness arises making it\\n\\nunnecessary to examine [the] actual performance of counsel.” United States v. Soto\\n\\nHernandez, 849 F.2d 1325, 1328 (10th Cir. 1988) (citing United States v. Cronic, 466\\n\\nU.S. 648, 658 (1984)). This rule may apply when there has been a “complete breakdown\\n\\nin communication between an attorney and client.” Id.\\n\\n While no precise definition exists of “[t]he types of communication breakdowns\\n\\nthat constitute ‘total breakdowns,’” generally “a defendant must put forth evidence of a\\n\\n 12\\n\\fsevere and pervasive conflict with his attorney or evidence that he had such minimal\\n\\ncontact with the attorney that meaningful communication was not possible.” United\\n\\nStates v. Lott (“Lott I”), 310 F.3d 1231, 1249 (10th Cir. 2002). We consider four factors\\n\\nwhen determining whether a complete breakdown in communication rendered a\\n\\ndefendant’s representation constitutionally ineffective:\\n\\n 1) whether the defendant’s motion for new counsel was timely; 2) whether\\n the trial court adequately inquired into defendant’s reasons for making the\\n motion; 3) whether the defendant-attorney conflict was so great that it led to\\n a total lack of communication precluding an adequate defense; and 4)\\n whether the defendant substantially and unreasonably contributed to the\\n communication breakdown.\\n\\nId. at 1250 (citing Romero v. Furlong, 215 F.3d 1107, 1113 (10th Cir. 2000)). Applying\\n\\nthese four Romero factors, the district court concluded that no complete breakdown in\\n\\ncommunication rendered Holloway’s representation ineffective. Holloway v. United\\n\\nStates, No. 2:17-CV-267, 2018 WL 1831835, at *2–3 (D. Utah Apr. 16, 2018).\\n\\n Holloway contends the district court erred when it analyzed each Romero\\n\\nfactor. We now analyze each factor and conclude that no total breakdown in\\n\\ncommunication occurred.\\n\\n First, we consider whether Holloway “made a timely motion requesting new\\n\\ncounsel.” Romero, 215 F.3d at 1113. Holloway contends his motion for new counsel\\n\\nwas timely, even though he filed it six days before a long-scheduled multi-week trial\\n\\nbecause: (1) the district court did not find that he filed the motion simply for the\\n\\npurpose of delay; (2) he was unable to retain counsel of his choice until late in the\\n\\nprocess for financial reasons; and (3) although the deadline for filing a motion to\\n\\n\\n 13\\n\\fsubstitute counsel was set 21 days before trial, his counsel did not inform him of that\\n\\ndeadline.\\n\\n None of these arguments convince us that Holloway’s motion was timely.\\n\\nFirst, while the district court did not find that Holloway filed the motion to delay\\n\\ntrial, throughout the litigation the district court warned Holloway that if he wanted to\\n\\nhire private counsel he needed to do so quickly. (“We’re not going to delay this trial\\n\\ndate. And so if you hire a lawyer . . . it has got to be by the end of the calendar year\\n\\nso he can get in and get up to speed and maintain all of the dates that we have got.”).\\n\\nMore importantly, Holloway submitted an affidavit in support of his § 2255 motion\\n\\nthat stated if he “had known of the 21-day deadline, [he] would have retained Ms.\\n\\nSkordas earlier, because my friend who paid her retainer for me had the funds\\n\\navailable.” Because by his own admission he could have hired counsel earlier, but\\n\\nnevertheless decided to wait until six days before trial, we are convinced the motion\\n\\nwas untimely.\\n\\n Next, we examine whether the trial court adequately inquired into the matter.\\n\\nRomero, 215 F.3d at 1113. Significantly, at the hearing on Murphy’s motion to\\n\\nwithdraw, the district court did not specifically inquire into the total breakdown of\\n\\ncommunication between Holloway and Murphy. Murphy’s motion, however, never\\n\\nexpressly raised the issue. Indeed, Murphy informed the district court that he\\n\\nrequested to withdraw as counsel because Holloway had obtained private counsel\\n\\n(Skordas).\\n\\n\\n\\n 14\\n\\f At the same hearing, the district court granted Murphy a recess after denying\\n\\nthe motion to withdraw so that Murphy, Skordas, and Holloway could meet and\\n\\ndiscuss Skordas’s role. When they returned, Murphy explained to the district court\\n\\nthat Skordas would not make her appearance as Holloway’s counsel at the time.\\n\\nMurphy then represented, in Holloway’s presence and with no objection from\\n\\nHolloway, that they had discussed whether Holloway “might wish to make a record\\n\\non his own behalf” in connection with the motion to “[c]ontinue the trial and\\n\\nsubstitute counsel,” but that he had declined.6\\n\\n Under these circumstances, where neither counsel nor the defendant indicated\\n\\nthat a total breakdown of communication existed, and both had an opportunity to do\\n\\nso, we conclude the district court adequately inquired into the matter. See Romero,\\n\\n215 F.3d at 1114 (concluding “we . . . doubt whether the trial court failed to make an\\n\\nadequate inquiry under the circumstances,” where the appellant made an ambiguous\\n\\nstatement that may have put the trial court on notice of his complete breakdown of\\n\\ncommunication claim and where the appellant failed to renew his objection after his\\n\\ncounsel indicated that the trial court’s resolution would adequately resolve any\\n\\nconflict).\\n\\n\\n\\n\\n 6\\n Holloway claims his conflict with Murphy began as early as March 24, 2014.\\nYet, the district court held multiple hearings prior to the hearing on Murphy’s motion\\nto withdraw in which Holloway could have informed the district court of his\\ndispleasure with Murphy’s representation. Recall, Holloway represented to the\\ndistrict court on June 3, 2014 that he “trust[ed] the direction that” Murphy was taking\\nand that he and Murphy were “all good.”\\n 15\\n\\f Third, we consider whether the conflict between Holloway and Murphy was so\\n\\ngreat as to result in a total breakdown of communication precluding an adequate\\n\\ndefense. Romero, 215 F.3d at 1113. Specifically, Holloway argues that:\\n\\n(1) Murphy’s motion to withdraw indicated that his judgment was “suspect”;\\n\\n(2) Murphy repeatedly sought to have him declared incompetent; and (3) Murphy’s\\n\\nbelief that he was incompetent controlled Murphy’s approach to the case and usurped\\n\\nhis right to determine the objective of his case.7 None of Holloway’s arguments\\n\\ncause us to conclude that any conflict between Holloway and Murphy was so great as\\n\\nto result in a total lack of communication precluding an adequate defense.\\n\\n Conflict that results in a total breakdown of communication exists where the\\n\\ndefendant and counsel could not, in any manner, communicate. See, e.g., Brown v.\\n\\nCraven, 424 F.2d 1166, 1170 (9th Cir. 1970) (holding that when a defendant and his\\n\\ncounsel did not communicate because of an “embroiled . . . irreconcilable conflict”\\n\\nthe defendant was “deprive[d] . . . of the effective assistance of . . . counsel . . . .”).\\n\\nA total breakdown can also exist where the defendant and counsel are embroiled in a\\n\\n“stormy [relationship] with quarrels, bad language, threats, and counter-threats.”\\n\\nUnited States v. Williams, 594 F.2d 1258, 1260 (9th Cir. 1979); but see United States\\n\\nv. John Doe No. 1, 272 F.3d 116, 124 (2d Cir. 2001) (concluding that while the\\n\\n\\n\\n 7\\n Holloway also pointed to the fact that Murphy learned that he retained\\nprivate counsel from the government. Because that fact relates to Holloway’s\\nactions, not Murphy’s, we address this argument under the final Romero factor—\\n“whether the defendant substantially and unreasonably contributed to the breakdown in\\ncommunication.” Romero, 215 F.3d at 1113.\\n 16\\n\\frelationship between defendant and counsel “was at times intense as a result of\\n\\n[defendant’s] violent and aggressive nature, the conflict between the two was not ‘so\\n\\ngreat that it . . . resulted in total lack of communication preventing an adequate\\n\\ndefense.’” (quoting United States v. Simeonov, 252 F.3d 238, 241 (2d Cir. 2001)).\\n\\n Meanwhile, certain contacts between a defendant and counsel can establish\\n\\nthat no complete breakdown in communication occurred. For example, in United\\n\\nStates v. Lott (“Lott II”), 433 F.3d 718, 721 (10th Cir. 2006), Lott’s counsel did not\\n\\nprovide Lott with any discovery and never visited Lott in jail. Yet, we concluded\\n\\n“there was not a lack of communication precluding an adequate defense” because:\\n\\n(1) counsel met with Lott and his probation officer in person to prepare the PSR; (2)\\n\\ncounsel had a policy permitting his clients to call him collect from jail at any time,\\n\\nLott was aware of that policy, and Lott made at least one call to counsel; (3) counsel\\n\\nsent Lott letters, “including one attaching a copy of the PSR and asking for comments\\n\\nor corrections;” and (4) counsel met in person with Lott in a holding area before\\n\\nsentencing. Id. at 725; see also United States v. Vaughan, 119 F. App’x 227, 231\\n\\n(10th Cir. 2004) (unpublished disposition cited only for its persuasive value)\\n\\n(concluding that the third Romero factor was not satisfied when counsel argued for\\n\\ntheir client at sentencing).\\n\\n In this case, Holloway claims that Murphy’s description of his judgment as\\n\\n“suspect” evinces the “adversarial divide” between them. The statement arose in\\n\\nMurphy’s motion to withdraw in response to prosecutors’ claims that Holloway\\n\\nrequested a change of counsel in a “last-minute, desperate attempt to manipulate the\\n\\n 17\\n\\flegal system.” Murphy replied, “[t]hat seems unnecessarily harsh. It will suffice to\\n\\nrespond that defendant Holloway’s judgment is suspect.”\\n\\n Referring to Holloway’s judgment as “suspect” is not the type of egregious\\n\\nconduct in which a presumption of prejudice arises under Cronic. See, e.g.,\\n\\nTurrentine v. Mullin, 390 F.3d 1181, 1208 (10th Cir. 2004) (“This Court has\\n\\nrepeatedly found the Cronic presumption inapplicable where counsel actively\\n\\nparticipated in all phases of the trial proceedings.” (internal quotation marks\\n\\nomitted)); United States v. Coleman, 835 F.3d 606, 612 (6th Cir. 2016) (“[T]he\\n\\npresumption of prejudice applies only in limited, egregious circumstances . . . .” (internal\\n\\nquotation marks omitted)). Indeed, that comment tells us nothing about the\\n\\nrelationship between Holloway and Murphy except that Murphy contested the\\n\\ngovernment’s negative characterization of his client’s motives. Accordingly, we\\n\\nconclude this lone statement by defense counsel does not evince a “severe and\\n\\npervasive” conflict. Lott I, 310 F.3d at 1249.\\n\\n Holloway also argues that his counsel’s focus on competency shows a conflict\\n\\nresulting in a total breakdown in communication. In United States v. Boigegrain, 155\\n\\nF.3d 1181, 1187 (10th Cir. 1998), we held that “[t]he Sixth Amendment . . . [does]\\n\\nnot require that [a] public defender adhere to the defendant’s apparent wish to avoid\\n\\nthe competency issue.” “[W]hen a lawyer has reason to believe that her client may\\n\\nnot be mentally competent to stand trial, she does not render ineffective assistance of\\n\\ncounsel by making her concerns known to the court.” Id. This is because “[t]he\\n\\nConstitution prohibits a court from trying defendants who are mentally incompetent.”\\n\\n 18\\n\\fId. at 1188 (citing Pate v. Robinson, 383 U.S. 375, 378 (1966)). And “[d]efense\\n\\ncounsel is often in the best position to determine whether a defendant’s competency\\n\\nis questionable.” Bryson v. Ward, 187 F.3d 1193, 1201 (10th Cir. 1999), cert.\\n\\ndenied, 529 U.S. 1058 (2000). Thus, “the defendant’s lawyer is not only allowed to\\n\\nraise the competency issue, but, because of the importance of the prohibition on\\n\\ntrying those who cannot understand proceedings against them, she has a professional\\n\\nduty to do so when appropriate.” Boigegrain, 155 F.3d at 1188.\\n\\n Here, Murphy had reason to believe that Holloway might not have been\\n\\nmentally competent to stand trial. Dr. Bone’s evaluation concluded that Holloway\\n\\nwas competent; yet, his supplemental evaluator memorandum expressed his belief\\n\\n“that [Holloway] is likely compromised with regard to judgment, decision-making,\\n\\nand assisting properly in his defense.” But unlike the evaluation, the supplemental\\n\\nevaluator memorandum arose out of a meeting between Dr. Bone, Holloway, and\\n\\nMurphy. The meeting’s purpose was to discuss Dr. Bone’s findings from the initial\\n\\nevaluation. The purpose was not to reevaluate Holloway. Yet after that meeting, Dr.\\n\\nBone provided the supplemental evaluator memorandum, in which he described a\\n\\nrenewed concern for Holloway’s competency to stand trial.\\n\\n After receiving the supplemental evaluator memorandum, Murphy\\n\\nappropriately raised Holloway’s competency with the district court in order to seek\\n\\nan additional opinion. And while Holloway criticizes his counsel’s attempts to have\\n\\nhim declared incompetent, he indicated that he understood the purpose of his\\n\\n\\n\\n 19\\n\\fevaluation was to determine if he could form the requisite intent to defraud the\\n\\nvictims.\\n\\n Holloway also asserts that Murphy’s intent-based defense usurped his ability\\n\\nto control the objective of his case. But strategic disputes do not establish conflicts\\n\\nthat support total breakdown in communication claims. United States v. Hutchinson,\\n\\n573 F.3d 1011, 1025 (10th Cir. 2009) (“‘strategic disagreement[s],’ while no doubt\\n\\nunhelpful to a productive working relationship, are ‘not sufficient to show a complete\\n\\nbreakdown in communication.’” (alteration in original) (quoting Lott II, 433 F.3d at\\n\\n725)); Lott I, 310 F.3d at 1249 (“Good cause for substitution of counsel consists of\\n\\nmore than a mere strategic disagreement between a defendant and his attorney . . .\\n\\nrather there must be a total breakdown in communications.” (internal citation\\n\\nomitted)); cf. Hale v. Gibson, 227 F.3d 1298, 1323 (10th Cir. 2000) (concluding that\\n\\nCronic was not implicated where counsel “made a reasonable strategic decision to\\n\\nconcede some involvement by Hale, given the overwhelming evidence presented at\\n\\ntrial, and focused on the extent of his involvement and whether others could have\\n\\nbeen involved”). And defenses pursued (or not pursued) at trial are quintessentially\\n\\nstrategic decisions. Gonzalez v. United States, 553 U.S. 242, 248 (2008)\\n\\n(“[D]ecisions by counsel are generally given effect as to what arguments to\\n\\npursue . . . .”); Anderson v. Attorney Gen. of Kan., 425 F.3d 853, 859 (10th Cir.\\n\\n2005) (“Whether to raise a particular defense is one aspect of trial strategy . . . .”).\\n\\n Here, Holloway expressly represented to Murphy that he wanted to contest the\\n\\nintent element of the wire fraud charges against him. Indeed, Holloway asked\\n\\n 20\\n\\fMurphy to convince the jury that he “did not intent[ionally] mislead any investor.”\\n\\nBecause Holloway sanctioned a defense based on intent, we are not convinced that\\n\\nMurphy “usurped” his ability to define the objective of his defense.8 Accordingly,\\n\\nMurphy’s pursuit of an intent-based defense at trial does not support a complete\\n\\nbreakdown of communication claim.\\n\\n Finally, we consider whether Holloway “substantially and unjustifiably\\n\\ncontributed to the breakdown in communication.” Romero, 215 F.3d at 1113. “A\\n\\ndefendant cannot simply manufacture a breakdown in communication and thereby give\\n\\nrise to a constitutional violation.” Id. at 1114.\\n\\n Holloway contends no evidence exists that his actions contributed to the strained\\n\\ncommunication with counsel, but the record is to the contrary. As Holloway points out,\\n\\nMurphy heard about his retention of private counsel from prosecutors, not from\\n\\n\\n\\n 8\\n In McCoy v. Louisiana, 138 S. Ct. 1500, 1508–11 (2018), the Supreme Court\\nheld that a defendant has an autonomy right (i.e., the “[a]utonomy to decide . . . the\\nobjective of the defense”) to assert actual innocence, and where counsel has violated\\nthat right, no showing of prejudice is necessary. Unlike ineffective assistance of\\ncounsel jurisprudence, “a client’s autonomy, not counsel’s competence, is in issue.”\\nId. at 1510–11. “These are not strategic choices about how best to achieve a client’s\\nobjectives; they are choices about what the client’s objectives in fact are.” Id. at\\n1508 (emphases in original). Holloway relies on McCoy to suggest that counsel\\nusurped Holloway’s right to determine the objective of his defense.\\n\\n Clearly McCoy permits a free-standing autonomy claim. But Holloway did\\nnot present that claim to the district court and the district court did not grant a COA\\nfor such a claim. Further, the Supreme Court recognized in McCoy that the disputes\\nthere “were not strategic disputes about whether to concede an element of a charged\\noffense.” Id. at 1510 (emphasis added). Meanwhile, the disputes here are strategic\\ndisputes. And as noted above, Holloway expressly requested his counsel attack the\\nintent element of the government’s case against him.\\n 21\\n\\fHolloway himself. Holloway chose not to communicate directly with Murphy about an\\n\\nissue that directly affected his representation. Indeed, Holloway stopped taking\\n\\nMurphy’s calls and limited their communication to email. This undoubtedly contributed\\n\\nto a tense relationship. Finally, much of Holloway’s hostility is attributable to the\\n\\ncompetency proceedings, which, as we just concluded, counsel had an obligation to\\n\\npursue.\\n\\n In sum, we conclude that the Romero factors do not support Holloway’s\\n\\ncontention that he suffered a complete breakdown in communication with Murphy that\\n\\nrendered his representation ineffective.\\n\\n B.\\n\\n Holloway also argues that his counsel’s failure to object to a six-level sentencing\\n\\nenhancement for 250 or more victims under U.S.S.G. § 2B1.1(b)(2)(C) deprived him of\\n\\neffective assistance of counsel. As we explained in Holloway’s direct appeal,\\n\\n The [district] court calculated Mr. Holloway’s Guideline range as 188 to 235\\n months and sentenced him to a term of imprisonment of 225 months. Part of\\n that calculation came from a six-level enhancement that applies if a crime\\n “involved 250 or more victims.” U.S.S.G. § 2B1.1(b)(2)(C) (2014). A\\n victim was defined as “any person who sustained any part of the actual loss,”\\n § 2B1.1 n.1, and “actual loss” was defined as “the reasonably foreseeable\\n pecuniary harm that resulted from the offense.” Id. at n.3.\\n\\nHolloway, 826 F.3d at 1250.\\n\\n In applying the enhancement, the district court appears to have extrapolated from\\n\\nthe testimony of seven witnesses that the number of victims exceeded 250. Holloway\\n\\ncontends these witnesses’ testimony did not establish by a preponderance of the evidence\\n\\n\\n\\n 22\\n\\fthe existence of 250 or more victims. Because Holloway believes his counsel overlooked\\n\\nthis objection, he contends his counsel provided ineffective assistance.\\n\\n We evaluate ineffective assistance of counsel claims using the framework\\n\\nprovided in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a\\n\\ndefendant “must show both that his counsel’s performance ‘fell below an objective\\n\\nstandard of reasonableness’ and that ‘the deficient performance prejudiced the defense.’”\\n\\nByrd v. Workman, 645 F.3d 1159, 1167 (10th Cir. 2011) (emphasis omitted) (quoting\\n\\nStrickland, 466 U.S. at 687–88). “Courts are free to address these two prongs in any\\n\\norder, and failure under either is dispositive.” Id. at 1168.\\n\\n “[O]ur review of counsel’s performance under the first prong of Strickland is a\\n\\n‘highly deferential’ one.” Id. (quoting Hooks v. Workman, 606 F.3d 715, 723 (10th Cir.\\n\\n2010)). We employ “a strong presumption that counsel provided effective assistance.”\\n\\nUnited States v. Kennedy, 225 F.3d 1187, 1197 (10th Cir. 2000). To be constitutionally\\n\\ndeficient, counsel’s performance “must have been ‘completely unreasonable, not merely\\n\\nwrong, so that it bears no relationship to a possible defense strategy.’” Hoxsie v. Kerby,\\n\\n108 F.3d 1239, 1246 (10th Cir. 1997) (quoting Hatch v. Oklahoma, 58 F.3d 1447, 1459\\n\\n(10th Cir. 1995)). Indeed, “we start by presuming, absent a showing to the contrary, that\\n\\nan attorney’s conduct is objectively reasonable because it could be considered part of a\\n\\nlegitimate trial strategy.” Bullock v. Carver, 297 F.3d 1036, 1047 (10th Cir. 2002). The\\n\\ndefendant bears the “heavy burden” of overcoming that presumption. Fox v. Ward, 200\\n\\nF.3d 1286, 1295 (10th Cir. 2000). And “the absence of evidence cannot overcome the\\n\\n‘strong presumption that counsel’s conduct [fell] within the wide range of reasonable\\n\\n 23\\n\\fprofessional assistance.’” Burt v. Titlow, 571 U.S. 12, 23 (2013) (alteration in original)\\n\\n(quoting Strickland, 466 U.S. at 689).\\n\\n Here, Holloway failed to establish that his counsel was constitutionally ineffective.\\n\\nHolloway correctly asserts that: (1) testimony at trial established that US Ventures had at\\n\\nleast 363 investors; (2) the government’s case-in-chief only included the testimony of\\n\\nseven investors who testified to their losses during the scheme; and (3) no testimony was\\n\\npresented during trial or at sentencing regarding the specific number of investors who\\n\\nwere made whole before the scheme ended.9 But Holloway has not overcome the\\n\\nstrong presumption that, under all the circumstances, the challenged action “might be\\n\\nconsidered sound trial strategy.” Strickland, 466 U.S. at 689 (emphasis added); cf.\\n\\nLott v. Trammell, 705 F.3d 1167, 1186 (10th Cir. 2013) (“Appellant must\\n\\ndemonstrate . . . that the challenged action could not be considered sound trial\\n\\nstrategy.”). Indeed, Holloway does not even advance an argument in this regard.\\n\\n The strong presumption in favor of attorney competence assumes that counsel\\n\\nmakes a strategic evaluation after considering the relevant costs and benefits of\\n\\ncertain actions. Here, while Holloway’s argument is colorable, the case law is not\\n\\nsettled in this Circuit. In other contexts we have approved reasonable estimates during\\n\\nsentencing. See, e.g., United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005)\\n\\n(“[W]hen the actual drugs . . . are not seized, the trial court may rely upon an estimate to\\n\\n\\n\\n 9\\n We also note that an individual is not a “victim” who suffered an “actual\\nloss” under § 2B1.1(b)(2) if the individual is “fully and timely reimbursed.” See\\nUnited States v. Orr, 567 F.3d 610, 616 (10th Cir. 2009).\\n 24\\n\\festablish the defendant’s guideline offense level so long as the information relied upon\\n\\nhas some basis of support in the facts of the particular case and bears sufficient indicia of\\n\\nreliability.” (internal quotation marks omitted)). But we have not addressed this type of\\n\\nextrapolation. Other circuits have reached different conclusions in analogous\\n\\ncircumstances. Compare United States v. Savarese, 686 F.3d 1, 16 (1st Cir. 2012)\\n\\n(affirming a district court that determined that ten or more credit card companies were\\n\\nvictims under U.S.S.G. § 2B1.1(b)(2)(A) because: (1) the co-conspirators executed\\n\\nfraudulent transactions on 107 credit cards, which each resulted in actual loss to the\\n\\nfinancial institution that issued that card; (2) most credit cards were destroyed after use,\\n\\nbut 23 were issued by five different institutions; (3) there was additional evidence that a\\n\\nsixth issuer was harmed), with United States v. Brown, 771 F.3d 1149, 1160 (9th Cir.\\n\\n2014) (rejecting the argument that “the district court could determine that 100 [out of\\n\\n405] victims had their financial security substantially endangered solely by extrapolating\\n\\nfrom the 27 out of 29 victim impact statements provided to it”). Thus, the benefits of\\n\\nobjecting were unclear.\\n\\n Furthermore, an objection could have harmed Holloway. At sentencing, Murphy\\n\\nsought leniency from the district court, imploring it to depart from the Guideline range to\\n\\naccount for Holloway’s mental proclivities.10 An objection could have resulted in\\n\\nadditional evidence regarding individual victims, which counsel could have reasonably\\n\\n\\n 10\\n The parties did not include the sentencing transcript in the record on appeal.\\nNevertheless, we take judicial notice of district court filings. See United States v.\\nSmalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) (taking judicial notice of district court\\nrecord that was not part of the record on appeal).\\n 25\\n\\fbelieved would reduce the likelihood of leniency. Accordingly, we conclude that\\n\\nHolloway failed to overcome the presumption that his counsel’s actions were strategic.\\n\\nSee Hanson v. Sherrod, 797 F.3d 810, 829 (10th Cir. 2015) (“[W]hen counsel focuses on\\n\\nsome issues to the exclusion of others, there is a strong presumption that he did so for\\n\\ntactical reasons rather than through sheer neglect.” (quoting Yarborough v. Gentry, 540\\n\\nU.S. 1, 8 (2003)).\\n\\n Nevertheless, Holloway argues that “a valid sentencing challenge overlooked by\\n\\ntrial counsel satisfies both prongs of the Strickland analysis.” In support, Holloway relies\\n\\non United States v. Kissick, 69 F.3d 1048 (10th Cir. 1995) and United States v. Glover,\\n\\n97 F.3d 1345 (10th Cir. 1996). Neither case persuades us that Holloway’s counsel was\\n\\nineffective.\\n\\n In Kissick, defense counsel “fail[ed] to challenge the use of a prior conviction to\\n\\nclassify the defendant as a career offender when that prior conviction [was] facially\\n\\ninsufficient” to satisfy the requirements for the career offender classification. Kissick, 69\\n\\nF.3d at 1056 (emphasis added). There, we concluded that counsel’s failure to object\\n\\nsatisfied the deficient performance prong under Strickland. Id. Similarly, in Glover we\\n\\nheld that “[w]hen counsel has unwittingly relieved the government of its burden of proof,\\n\\nparticularly when the evidence of record does not satisfy that burden, it is fair to say\\n\\ncounsel has ‘so undermined the proper functioning of the adversarial process that [it]\\n\\ncannot be relied on as having produced a just result.’” Glover, 97 F.3d at 1349 (alteration\\n\\nin original) (footnote omitted) (quoting Strickland, 466 U.S. at 686). But we emphasized\\n\\n\\n\\n 26\\n\\fthat the sentencing “issue counsel failed to raise was clearly meritorious.” Id. (emphasis\\n\\nadded).\\n\\n In both Kissick and Glover, counsel failed to raise clearly meritorious arguments\\n\\nand there was no indication that the defendant could have been prejudiced if counsel\\n\\nobjected. Here, the objection was not a clear winner and could have prejudiced\\n\\nHolloway. Thus, counsel’s failure to object to the number of victims is reasonably\\n\\nattributable to sentencing strategy. For those reasons, we are not persuaded that either\\n\\nKissick or Glover dictate our resolution of Holloway’s claim.\\n\\n Accordingly, Holloway failed to carry his burden with respect to this claim.\\n\\n IV.\\n\\n Finally, Holloway argues that the prosecution violated his due process rights by\\n\\nfailing to turn over evidence in the receiver’s possession. Holloway seeks all the\\n\\ndocuments in the receiver’s possession. The district court construed this claim as a Brady\\n\\nviolation and denied relief.\\n\\n “[T]he suppression by the prosecution of evidence favorable to an accused . . .\\n\\nviolates due process where the evidence is material either to guilt or to punishment,\\n\\nirrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87. To\\n\\nestablish a Brady violation, the defendant bears the burden of establishing that: the\\n\\nprosecution suppressed evidence; the evidence was favorable to the accused; and the\\n\\nevidence was material. Smith v. Sec’y of N.M. Dep’t of Corr., 50 F.3d 801, 824 (10th\\n\\nCir. 1995). The “prosecution” includes “not only the individual prosecutor handling the\\n\\ncase, but also extends to the prosecutor’s entire office, as well as . . . other arms of the\\n\\n 27\\n\\fstate involved in investigative aspects of a particular criminal venture.” Smith, 50 F.3d at\\n\\n824 (internal citation and footnote omitted).\\n\\n Holloway contends that the receiver was a member of the prosecution team, and\\n\\nthus the prosecution had a duty to ask the receiver to provide it with all exculpatory and\\n\\nmaterial documents.11 “A Brady claim fails if the existence of favorable evidence is\\n\\nmerely suspected.” United States v. Erickson, 561 F.3d 1150, 1163 (10th Cir. 2009).\\n\\nThe defendant bears the burden of establishing that the evidence exists. Id. Here,\\n\\nHolloway’s Brady violation fails because he does not even attempt to argue that the\\n\\ndocuments in the receiver’s possession are favorable to him. Indeed, he claims he cannot\\n\\nevaluate favorability because he has not seen the receiver’s documents. Speculation is\\n\\ninsufficient to establish favorability under Brady. United States v. Acosta-Gallardo, 656\\n\\nF.3d 1109, 1117 (10th Cir. 2011) (concluding that the defendant failed to establish\\n\\nfavorability under Brady where “no one knows whether the results [of the fingerprint\\n\\nanalysis] would have been favorable” to the defendant); Sandoval v. Ulibarri, 548 F.3d\\n\\n902, 915 (10th Cir. 2008) (explaining that the defendant had the burden to establish “his\\n\\n\\n\\n\\n 11\\n The district court concluded that the receiver did not fall within the\\nprosecution team because he was an officer of the court. Holloway, 2018 WL\\n1831835, at *4. We have not addressed whether a court-appointed receiver can be a\\nmember of the prosecution team for Brady purposes. Because we resolve this issue on\\nother grounds, we do not reach that question.\\n\\n\\n 28\\n\\f[Brady] theory was more than speculation”). Here, Holloway offers even less than\\n\\nspeculation. Thus, Holloway’s Brady claim necessarily fails.12\\n\\n We note that Holloway seeks access to all the documents in the receiver’s\\n\\npossession. To the extent this request may be construed as a discovery motion, we\\n\\nconclude that he waived the argument. See Adler v. Wal–Mart Stores, Inc., 144 F.3d\\n\\n664, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are\\n\\nwaived.”). Holloway’s briefing referenced only a Brady violation, made no mention of\\n\\ndiscovery, and did not cite the proper standard for discovery in § 2255 proceedings. See\\n\\nRule 6(a) of the Rules Governing Section 2255 Proceedings. Indeed, neither party\\n\\nbriefed the issue of whether Holloway is entitled to discovery in the § 2255 context to the\\n\\ndistrict court or on appeal. Accordingly, Holloway waived any argument for discovery.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 12\\n As to materiality, “[u]nder Brady, evidence is material if it creates a\\nreasonable probability that, had the evidence been disclosed to the defense, the result\\nof the proceedings would have been different.” United States v. Acosta-Gallardo,\\n656 F.3d 1109, 1117 (10th Cir. 2011) (internal quotation marks omitted). “A\\nreasonable probability is a probability sufficient to undermine confidence in the\\noutcome.” Id. (quoting Scott v. Mullin, 303 F.3d 1222, 1230 (10th Cir. 2002).\\n\\n Holloway fails to allege that the documents are material. But, even if he had,\\nat trial the prosecution presented overwhelming evidence of Holloway’s guilt,\\nincluding Holloway’s own emails describing his operation of US Ventures as a\\n“Ponzi deal.” We doubt that any documents in the possession of the receiver would\\nundermine our confidence in the outcome of the case, particularly because\\nHolloway’s defense strategy focused on his mental culpability, not on whether he\\nwas engaged in the underlying conduct itself.\\n 29\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4487,"cells":{"id":{"kind":"number","value":4662895,"string":"4,662,895"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. McClaflin"},"decision_date":{"kind":"string","value":"2019-09-20"},"docket_number":{"kind":"string","value":"18-1217"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before MATHESON, SEYMOUR, and BACHARACH, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"SEYMOUR, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS September 20, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 18-1217\\n\\n KAREN LYNN MCCLAFLIN,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Colorado\\n (D.C. No. 1:17-CR-00168-CMA-1)\\n _________________________________\\n\\nAnn Marie Taliaferro, Brown, Bradshaw & Moffat, L.L.P., Salt Lake City, Utah, for\\nDefendant-Appellant.\\n\\nJames C. Murphy, Assistant United States Attorney (Jason R. Dunn, United States\\nAttorney, with him on the brief), Denver Colorado, for Plaintiff-Appellee.\\n _________________________________\\n\\nBefore MATHESON, SEYMOUR, and BACHARACH, Circuit Judges.\\n _________________________________\\n\\nSEYMOUR, Circuit Judge.\\n _________________________________\\n\\n Defendant Karen McClaflin pled guilty to two counts stemming from the\\n\\noperation of a residential Ponzi scheme which defrauded investors of more than\\n\\n$14.5 million dollars. At sentencing, the district court calculated the advisory\\n\\nsentencing guidelines at 135 to 168 months’ imprisonment, applied a 6-level\\n\\fenhancement for substantial financial hardship to more than twenty-five victims, and\\n\\nthen determined that a downward variant sentence of 96 months was appropriate. On\\n\\nappeal, Ms. McClaflin argues the district court: (1) abused its discretion by denying\\n\\nher motion for an additional continuance of the sentencing hearing, (2) procedurally\\n\\nerred by imposing the 6-level enhancement based upon victim impact statements, and\\n\\n(3) failed to consider all of the requisite 18 U.S.C. § 3553(a) factors. We affirm.\\n\\n\\n\\n I.\\n\\n Between March 2011 and early 2017, Ms. McClaflin operated a “fix and flip”\\n\\nreal estate Ponzi scheme in which she made false promises to investors. On June 21,\\n\\n2017, Ms. McClaflin entered into a plea agreement with the government for wire\\n\\nfraud and money laundering. The plea deal included a 2-level enhancement for a\\n\\ncrime involving more than ten victims. The government indicated that it did not have\\n\\nthe evidence at that time to support a 6-level enhancement for substantial financial\\n\\nhardship to more than twenty-five victims.\\n\\n The parties jointly filed a motion to continue on September 1, 2017, and the\\n\\ndistrict court moved the sentencing hearing set for January 17, 2018 to March 14 to\\n\\ngive the parties more time to analyze documents regarding loss and restitution. On\\n\\nMarch 5, counsel for Ms. McClaflin requested another continuance due to Ms.\\n\\nMcClaflin’s poor health and hip problems. The district court moved the sentencing\\n\\nhearing to May 10, nearly an entire year after Ms. McClaflin pled guilty to the\\n\\n\\n\\n\\n 2\\n\\fcharges. The week of the hearing Ms. McClaflin again requested her sentencing be\\n\\ncontinued on the grounds of her ill health. The district court denied the motion and it\\n\\nrepeated this denial when Ms. McClaflin’s counsel urged a continuance at the\\n\\nsentencing hearing.\\n\\n At sentencing, the court questioned the government’s decision not to pursue\\n\\nthe 6-level enhancement. Notwithstanding the government’s reticence and in order to\\n\\nimplement the enhancement, the district court conducted an extensive review of the\\n\\nsworn victim impact statements attached to the presentence Report (“PSR”). The\\n\\ncourt made independent findings of fact regarding Ms. McClaflin’s scheme and\\n\\nspecifically found that Ms. McClaflin’s offense resulted in substantial financial\\n\\nhardship to twenty-five or more victims. See U.S.S.G. § 2B1.1(b)(2)(C).\\n\\n Prior to passing sentence, the district court heard testimony from victims of\\n\\nMs. McClaflin’s scheme from the Receiver who had been appointed by the court to\\n\\nrecover assets related to the scheme, and from Ms. McClaflin herself. Finding that\\n\\nMs. McClaflin committed a level 33 offense with a criminal history category of I,\\n\\nresulting in an advisory imprisonment range between 135 and 168 months, the court\\n\\ndetermined a downward variant sentence of 96 months was warranted. Ms.\\n\\nMcClaflin appeals.\\n\\n\\n\\n II.\\n\\n We review the denial of a motion for continuance for abuse of discretion and\\n\\nwill only find error if the district court’s decision was “arbitrary or unreasonable and\\n\\n\\n 3\\n\\fmaterially prejudiced” the defendant. Rogers v. Andrus Transp. Services, 502 F.3d\\n\\n1147, 1151 (10th Cir. 2007). In determining whether the denial of a continuance\\n\\nconstitutes an abuse of discretion, we look to the individual circumstances of the\\n\\ncase. Id.\\n\\n The framework for reviewing the denial of a motion for a continuance\\n\\n“involves an examination of four factors: (1) the diligence of the party seeking the\\n\\ncontinuance; (2) the likelihood the continuance, if granted, would have accomplished\\n\\nthe stated purpose; (3) the inconvenience to the opposing party, witnesses, and the\\n\\ncourt; and (4) the need for the continuance and any harm resulting from its denial.”\\n\\nUnited States v. Glaub, 910 F.3d 1334, 1345 (10th Cir. 2018). “The final factor is\\n\\nthe most important.” United States v. Orr, 692 F.3d 1079, 1100 (10th Cir. 2012).\\n\\n Of those four factors, Ms. McClaflin has not clearly satisfied any of them. Ms.\\n\\nMcClaflin’s counsel admitted that he was not prepared for the sentencing hearing,\\n\\nthat he had not sufficiently talked to witnesses, and that he had not explained the\\n\\nextent of Ms. McClaflin’s medical condition or ascertained proper facilities through\\n\\nthe BOP. Nor had he filed a motion for a variant sentence. There was not a high\\n\\nlikelihood that if a continuance were granted, Ms. McClaflin’s health would improve\\n\\nmuch more than it already had. The district court noted that Ms. McClaflin was not\\n\\nundergoing an imminent medical procedure, and Ms. McClaflin’s counsel conceded\\n\\nthat her hip infection was “as low as it can be right now.” Rec., vol. IV at 11.\\n\\n Conversely, granting the continuance would have greatly inconvenienced the\\n\\n\\n\\n\\n 4\\n\\fopposing party and the court. Ms. McClaflin requested the continuance a mere five\\n\\ndays before the hearing was set to commence, and it is likely that the victims and\\n\\nwitnesses had previously made preparations to attend. The district court already had\\n\\ngranted Ms. McClaflin and the government almost a year to review financial\\n\\ninformation and to prepare for sentencing, and it would have been required to\\n\\nrearrange its calendar even further in order to grant Ms. McClaflin a new hearing\\n\\ndate.\\n\\n Significantly, Ms. McClaflin has failed to demonstrate prejudice. In United\\n\\nStates v. West, 828 F.2d 1468, 1471 (10th Cir. 1987), we held that the district court\\n\\nabused its discretion in denying the requested continuance because it precluded the\\n\\ndefendant from calling “the only eyewitness who might have presented directly\\n\\nexculpatory testimony.” 1 There,“the testimony was important and the prejudice\\n\\nresulting from the denial of a continuance was severe.” Id. Here, however, the\\n\\ncontinuance would merely allow Ms. McClaflin to accumulate additional mitigating\\n\\nevidence. The district court did not abuse its discretion in denying the motion for a\\n\\ncontinuance.\\n\\n\\n\\n\\n 1\\n In West, 828 F.2d at 1470, the defendant’s primary defense to a first-degree\\nmurder charge was that he did not strike the victim and was therefore innocent. The\\ncourt denied the defendant’s continuance motion until the next day, even when a\\nsubpoenaed witness who would testify that the defendant did not strike the victim did\\nnot appear on the day he was called and a reasonable possibility existed he would\\nvoluntarily appear the next day. Id. at 1470–71.\\n\\n 5\\n\\f III.\\n\\n Ms. McClaflin also contends that the district court made two procedural errors:\\n\\nfirst, by relying on sworn victim impact statements to sua sponte impose the 6-level\\n\\nenhancement; and second by failing to consider the requisite § 3553(a) factors. The\\n\\nparties disagree on the relevant standard of review.\\n\\n “Fairness and judicial efficiency demand that litigants notify the district court\\n\\nof a procedural sentencing error with reasonable specificity, thereby providing that\\n\\ncourt the opportunity to correct its action in the first instance.” United States v.\\n\\nRobertson, 568 F.3d 1203, 1209 (10th Cir. 2009). We require timely objections so\\n\\nthe district court can consider and resolve them at the time they are raised and\\n\\nbecause “[i]n the case of an actual or invited procedural error, the district court can\\n\\noften correct or avoid the mistake so that it cannot possibly affect the ultimate\\n\\noutcome.” Puckett v. United States, 556 U.S. 129, 134 (2009). It is Ms. McClaflin’s\\n\\nposition that she properly objected to the procedural errors and any failure to\\n\\npreserve the issues was excused because it was plain that further objection would\\n\\nhave been futile. On the other hand, the government contends these claims were not\\n\\nproperly objected to and should only be reviewed for plain error, which requires there\\n\\nbe an “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4)\\n\\nseriously affects the fairness, integrity, or public reputation of judicial proceedings.”\\n\\nUnited States v. Wright, 848 F.3d 1274, 1278 (10th Cir. 2017).\\n\\n A. 6-level enhancement\\n\\n\\n\\n\\n 6\\n\\f Prior to sentencing, the government filed a written objection to the 6-level\\n\\nenhancement recommended in the PSR for substantial financial hardship to twenty-\\n\\nfive or more victims. The only ground stated for the objection was that the\\n\\ngovernment elected to stand by the plea agreement’s offense level calculation of a 2-\\n\\nlevel enhancement based on more than ten victims. Ms. McClaflin joined the\\n\\ngovernment’s objection. At sentencing, the district court explained its process for\\n\\napplying the 6-level enhancement and walked through its underlying findings of fact.\\n\\nWhen the court prompted Ms. McClaflin’s counsel to make any statement in regards\\n\\nto the written objection to the 6-level enhancement, defense counsel merely stated,\\n\\n“[i]t is the Government’s objection . . . not the defendant’s.” Rec., vol. IV at 22. The\\n\\njudge prompted counsel a second time “to make any statement for purposes of your\\n\\nrecord on appeal” and counsel reiterated that he did not have a statement. Id. Ms.\\n\\nMcClaflin’s claim that further objection would have been futile is thus unconvincing.\\n\\n We require that parties object with specificity so that the district court can\\n\\ncorrect its actions in the first instance. See, e.g., United States v. Holloway, 826 F.3d\\n\\n1237, 1251 (10th Cir. 2016); Robertson, 568 F.3d at 1209. Ms. McClaflin did not\\n\\nobject to the accuracy of the sworn victim impact statements nor to the district\\n\\ncourt’s reliance upon them. “We have repeatedly held that if a defendant fails to\\n\\nobject to his presentence report, he waives his right to challenge the district court’s\\n\\nreliance on it, unless the district court’s decision to do so amounts to plain error.”\\n\\nHolloway, 826 F.3d at 1251; see also United States v. Figueroa-Labrada, 720 F.3d\\n\\n\\n\\n\\n 7\\n\\f1258, 1266 (10th Cir. 2013). Because Ms. McClaflin did not properly preserve the\\n\\nissue at sentencing, we review for plain error.\\n\\n The district court did not err by using the sworn victim impact statements to\\n\\nmake its own independent findings of fact. “The sentencing judge remains ultimately\\n\\nresponsible for determining the facts and must establish the relevant facts even if all\\n\\nthe parties argue to the contrary.” United States v. Aragon, 922 F.3d 1102, 1109\\n\\n(10th Cir. 2019) (internal brackets omitted). In determining the number of victims\\n\\nand calculating loss, a district court must make independent findings supporting its\\n\\nconclusions. Holloway, 826 F.3d at 1251. In doing so, the court can look beyond\\n\\nadmissible evidence at trial as long as the information has a sufficient indica of\\n\\nreliability to support its probable accuracy. See, e.g., United States v. Caiba-Antele,\\n\\n705 F.3d 1162, 1165 (10th Cir. 2012); see also United States v. Sunmola, 887 F.3d\\n\\n830, 836–37 (7th Cir. 2018); U.S.S.G. § 6A1.3(a).\\n\\n Here, the district court made independent factual findings by relying upon\\n\\nvictim impact statements that were submitted under penalty of perjury and whose\\n\\naccuracy was not disputed by any party. The court heard testimony from the\\n\\ngovernment’s IRS agent who likewise relied upon the victim impact statements.\\n\\nSpeaking in allocution, Ms. McClaflin referred to the statements, indicating she had\\n\\n“read them over and over and over . . ..” Rec., vol. IV at 101. At no point did Ms.\\n\\nMcClaflin raise any concerns or objection or otherwise contend that these sworn\\n\\nvictim impact statements were unreliable. Accordingly, the victim impact statements\\n\\nwere properly considered by the court.\\n\\n\\n 8\\n\\f In calculating the number of victims who suffered substantial financial\\n\\nhardship2, the district court first determined that there were over ninety investors who\\n\\nwere defrauded by Ms. McClaflin, counting husband and wife couples together as\\n\\none victim. Of those ninety, sixty-three filed victim impact statements under penalty\\n\\nof perjury. Twenty-eight of these indicated that they had to make substantial changes\\n\\nto their employment or substantial changes to their living arrangements as a direct\\n\\nresult of Ms. McClaflin’s fraudulent scheme. At the very least the twenty-eight\\n\\nsworn statements meet the standard for substantial financial hardship laid out in the\\n\\nSentence Guidelines Application Note. See U.S.S.G. § 2B1.1, cmt. n.4(f) (iv), and\\n\\n(v). Because the district court’s consideration of this evidence was well within its\\n\\ndiscretion, the district court did not procedurally err in relying on the sworn victim\\n\\nimpact statements.\\n\\n B. § 3553(a) factors\\n\\n\\n 2\\n “Substantial Financial Hardship.—In determining whether the offense\\nresulted in substantial financial hardship to a victim, the court shall consider, among\\nother factors, whether the offense resulted in the victim—\\n (i) becoming insolvent;\\n (ii) filing for bankruptcy under the Bankruptcy Code (title 11, United States\\nCode);\\n (iii) suffering substantial loss of a retirement, education, or other savings or\\ninvestment fund;\\n (iv) making substantial changes to his or her employment, such as postponing\\nhis or her retirement plans;\\n (v) making substantial changes to his or her living arrangements, such as\\nrelocating to a less expensive home; and\\n (vi) suffering substantial harm to his or her ability to obtain credit.”\\n\\n U.S.S.G. § 2B1.1, cmt. n.4(f).\\n\\n\\n 9\\n\\f Ms. McClaflin also claims the district court failed to properly consider all of the\\n\\nrelevant § 3553(a) factors before imposing its sentence. But, once again, she never\\n\\nobjected to the district court’s sentencing process at trial. We therefore review only\\n\\nfor plain error.\\n\\n Ms. McClaflin contends that the court did not ask to hear from counsel or the\\n\\ndefendant until after it had already made up its mind. She relies on the court’s\\n\\nstatement prior to sentencing that “I am inclined to grant a variant sentence\\n\\nsomewhere within that adjusted advisory guideline range . . . . However, I have not\\n\\ndecided where within that range of 87 to 108 months the sentence should actually\\n\\nbe.” Rec., vol. IV at 85-86. But Ms. McClaflin takes a single statement out of the\\n\\ncontext of the entire sentencing process. Overall that process shows that the district\\n\\ncourt proceeded properly and considered the requisite factors. For example, when\\n\\nthe court began it’s sentencing, it stated:\\n\\n I will tell you where I am going, in terms of my inclinations, so that\\n you can target any arguments you have to what my concerns are, and\\n to persuade me otherwise, or to persuade me to go the way I have\\n indicated, if that is what you want. I will hear from [defense counsel],\\n then [the government], and finally, if Ms. McClaflin wishes to make\\n any statement to me on her own behalf, I will hear from her.\\n\\nId. at 73–74. The court thus clearly demonstrated that, although it had a general idea\\n\\nbased upon the PSR, it would hear from the parties involved before making the final\\n\\ndecision.\\n\\n Ms. McClaflin further contends the district court failed to consider other\\n\\nrelevant mitigating factors besides Ms. McClaflin’s cooperation with the government\\n\\n\\n\\n 10\\n\\fwhen imposing her sentence. We disagree. While the court put an emphasis on Ms.\\n\\nMcClaflin’s cooperation, this was not the only factor it considered. For example, the\\n\\ncourt clearly considered the nature and circumstances of the offense by noting the\\n\\nimpact of Ms. McClaflin’s scheme on her victims. It also noted that Ms. McClaflin\\n\\ndid not act in a manner entirely consistent with a woman who was truly sorry for her\\n\\nconduct, expressing concerns about Ms. McClaflin’s failure to account for personal\\n\\nassets and her divorce from her husband to secure his assets. With respect to the\\n\\n§ 3553(a) factors, “[w]e do not require a ritualistic incantation to establish\\n\\nconsideration of a legal issue, nor do we demand that the district court recite any\\n\\nmagic words to show us that it fulfilled its responsibility to be mindful of the factors\\n\\nthat Congress has instructed it to consider.” United States v. Lopez-Flores, 444 F.3d\\n\\n1218, 1223 (10th Cir. 2006) (citation omitted); see also United States v. Rines, 419\\n\\nF.3d 1104, 1107 (10th Cir. 2005) (“It is true that the district court did not march\\n\\nthrough § 3553(a)’s sentencing factors, but we have never imposed such a\\n\\nrequirement.”).\\n\\n Although Ms. McClaflin specifically alleges that the district court did not\\n\\nconsider her medical circumstances, the record reveals that in fact it did do so before\\n\\ndetermining that the Bureau of Prisons was better suited to decide which facilities\\n\\nand treatments were necessary. Rec., vol. IV at 115 (“I think the Bureau of Prisons\\n\\ncan sort out whether she really does have serious medical issues that are different\\n\\nfrom any of the other defendants that they see on a regular basis who have medical\\n\\n\\n\\n\\n 11\\n\\fissues.”). The court was clearly aware of and considered Ms. McClaflin’s medical\\n\\nneeds at sentencing, but it did not deem them determinative, noting that Ms.\\n\\nMcClaflin was not at risk of undergoing a major procedure in the imminent future.\\n\\nBecause the district court clearly considered the relevant § 3553(a) factors, it did not\\n\\nplainly err when it sentenced Ms. McClaflin.\\n\\n We AFFIRM the judgment of the district court.\\n\\n\\n\\n\\n 12\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4440148/\", \"author_raw\": \"SEYMOUR, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"MATHESON"},"judge2":{"kind":"string","value":"SEYMOUR"},"judge3":{"kind":"string","value":"BACHARACH"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"MATHESON\": \", Circuit\", \"SEYMOUR\": \", Circuit\", \"BACHARACH\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4662895/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. McClaflin\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-09-20\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS September 20, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n UNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v. No. 18-1217\n\n KAREN LYNN MCCLAFLIN,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Colorado\n (D.C. No. 1:17-CR-00168-CMA-1)\n _________________________________\n\nAnn Marie Taliaferro, Brown, Bradshaw & Moffat, L.L.P., Salt Lake City, Utah, for\nDefendant-Appellant.\n\nJames C. Murphy, Assistant United States Attorney (Jason R. Dunn, United States\nAttorney, with him on the brief), Denver Colorado, for Plaintiff-Appellee.\n _________________________________\n\nBefore MATHESON, SEYMOUR, and BACHARACH, Circuit Judges.\n _________________________________\n\nSEYMOUR, Circuit Judge.\n _________________________________\n\n Defendant Karen McClaflin pled guilty to two counts stemming from the\n\noperation of a residential Ponzi scheme which defrauded investors of more than\n\n$14.5 million dollars. At sentencing, the district court calculated the advisory\n\nsentencing guidelines at 135 to 168 months’ imprisonment, applied a 6-level\n\fenhancement for substantial financial hardship to more than twenty-five victims, and\n\nthen determined that a downward variant sentence of 96 months was appropriate. On\n\nappeal, Ms. McClaflin argues the district court: (1) abused its discretion by denying\n\nher motion for an additional continuance of the sentencing hearing, (2) procedurally\n\nerred by imposing the 6-level enhancement based upon victim impact statements, and\n\n(3) failed to consider all of the requisite 18 U.S.C. § 3553(a) factors. We affirm.\n\n\n\n I.\n\n Between March 2011 and early 2017, Ms. McClaflin operated a “fix and flip”\n\nreal estate Ponzi scheme in which she made false promises to investors. On June 21,\n\n2017, Ms. McClaflin entered into a plea agreement with the government for wire\n\nfraud and money laundering. The plea deal included a 2-level enhancement for a\n\ncrime involving more than ten victims. The government indicated that it did not have\n\nthe evidence at that time to support a 6-level enhancement for substantial financial\n\nhardship to more than twenty-five victims.\n\n The parties jointly filed a motion to continue on September 1, 2017, and the\n\ndistrict court moved the sentencing hearing set for January 17, 2018 to March 14 to\n\ngive the parties more time to analyze documents regarding loss and restitution. On\n\nMarch 5, counsel for Ms. McClaflin requested another continuance due to Ms.\n\nMcClaflin’s poor health and hip problems. The district court moved the sentencing\n\nhearing to May 10, nearly an entire year after Ms. McClaflin pled guilty to the\n\n\n\n\n 2\n\fcharges. The week of the hearing Ms. McClaflin again requested her sentencing be\n\ncontinued on the grounds of her ill health. The district court denied the motion and it\n\nrepeated this denial when Ms. McClaflin’s counsel urged a continuance at the\n\nsentencing hearing.\n\n At sentencing, the court questioned the government’s decision not to pursue\n\nthe 6-level enhancement. Notwithstanding the government’s reticence and in order to\n\nimplement the enhancement, the district court conducted an extensive review of the\n\nsworn victim impact statements attached to the presentence Report (“PSR”). The\n\ncourt made independent findings of fact regarding Ms. McClaflin’s scheme and\n\nspecifically found that Ms. McClaflin’s offense resulted in substantial financial\n\nhardship to twenty-five or more victims. See U.S.S.G. § 2B1.1(b)(2)(C).\n\n Prior to passing sentence, the district court heard testimony from victims of\n\nMs. McClaflin’s scheme from the Receiver who had been appointed by the court to\n\nrecover assets related to the scheme, and from Ms. McClaflin herself. Finding that\n\nMs. McClaflin committed a level 33 offense with a criminal history category of I,\n\nresulting in an advisory imprisonment range between 135 and 168 months, the court\n\ndetermined a downward variant sentence of 96 months was warranted. Ms.\n\nMcClaflin appeals.\n\n\n\n II.\n\n We review the denial of a motion for continuance for abuse of discretion and\n\nwill only find error if the district court’s decision was “arbitrary or unreasonable and\n\n\n 3\n\fmaterially prejudiced” the defendant. Rogers v. Andrus Transp. Services, 502 F.3d\n\n1147, 1151 (10th Cir. 2007). In determining whether the denial of a continuance\n\nconstitutes an abuse of discretion, we look to the individual circumstances of the\n\ncase. Id.\n\n The framework for reviewing the denial of a motion for a continuance\n\n“involves an examination of four factors: (1) the diligence of the party seeking the\n\ncontinuance; (2) the likelihood the continuance, if granted, would have accomplished\n\nthe stated purpose; (3) the inconvenience to the opposing party, witnesses, and the\n\ncourt; and (4) the need for the continuance and any harm resulting from its denial.”\n\nUnited States v. Glaub, 910 F.3d 1334, 1345 (10th Cir. 2018). “The final factor is\n\nthe most important.” United States v. Orr, 692 F.3d 1079, 1100 (10th Cir. 2012).\n\n Of those four factors, Ms. McClaflin has not clearly satisfied any of them. Ms.\n\nMcClaflin’s counsel admitted that he was not prepared for the sentencing hearing,\n\nthat he had not sufficiently talked to witnesses, and that he had not explained the\n\nextent of Ms. McClaflin’s medical condition or ascertained proper facilities through\n\nthe BOP. Nor had he filed a motion for a variant sentence. There was not a high\n\nlikelihood that if a continuance were granted, Ms. McClaflin’s health would improve\n\nmuch more than it already had. The district court noted that Ms. McClaflin was not\n\nundergoing an imminent medical procedure, and Ms. McClaflin’s counsel conceded\n\nthat her hip infection was “as low as it can be right now.” Rec., vol. IV at 11.\n\n Conversely, granting the continuance would have greatly inconvenienced the\n\n\n\n\n 4\n\fopposing party and the court. Ms. McClaflin requested the continuance a mere five\n\ndays before the hearing was set to commence, and it is likely that the victims and\n\nwitnesses had previously made preparations to attend. The district court already had\n\ngranted Ms. McClaflin and the government almost a year to review financial\n\ninformation and to prepare for sentencing, and it would have been required to\n\nrearrange its calendar even further in order to grant Ms. McClaflin a new hearing\n\ndate.\n\n Significantly, Ms. McClaflin has failed to demonstrate prejudice. In United\n\nStates v. West, 828 F.2d 1468, 1471 (10th Cir. 1987), we held that the district court\n\nabused its discretion in denying the requested continuance because it precluded the\n\ndefendant from calling “the only eyewitness who might have presented directly\n\nexculpatory testimony.” 1 There,“the testimony was important and the prejudice\n\nresulting from the denial of a continuance was severe.” Id. Here, however, the\n\ncontinuance would merely allow Ms. McClaflin to accumulate additional mitigating\n\nevidence. The district court did not abuse its discretion in denying the motion for a\n\ncontinuance.\n\n\n\n\n 1\n In West, 828 F.2d at 1470, the defendant’s primary defense to a first-degree\nmurder charge was that he did not strike the victim and was therefore innocent. The\ncourt denied the defendant’s continuance motion until the next day, even when a\nsubpoenaed witness who would testify that the defendant did not strike the victim did\nnot appear on the day he was called and a reasonable possibility existed he would\nvoluntarily appear the next day. Id. at 1470–71.\n\n 5\n\f III.\n\n Ms. McClaflin also contends that the district court made two procedural errors:\n\nfirst, by relying on sworn victim impact statements to sua sponte impose the 6-level\n\nenhancement; and second by failing to consider the requisite § 3553(a) factors. The\n\nparties disagree on the relevant standard of review.\n\n “Fairness and judicial efficiency demand that litigants notify the district court\n\nof a procedural sentencing error with reasonable specificity, thereby providing that\n\ncourt the opportunity to correct its action in the first instance.” United States v.\n\nRobertson, 568 F.3d 1203, 1209 (10th Cir. 2009). We require timely objections so\n\nthe district court can consider and resolve them at the time they are raised and\n\nbecause “[i]n the case of an actual or invited procedural error, the district court can\n\noften correct or avoid the mistake so that it cannot possibly affect the ultimate\n\noutcome.” Puckett v. United States, 556 U.S. 129, 134 (2009). It is Ms. McClaflin’s\n\nposition that she properly objected to the procedural errors and any failure to\n\npreserve the issues was excused because it was plain that further objection would\n\nhave been futile. On the other hand, the government contends these claims were not\n\nproperly objected to and should only be reviewed for plain error, which requires there\n\nbe an “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4)\n\nseriously affects the fairness, integrity, or public reputation of judicial proceedings.”\n\nUnited States v. Wright, 848 F.3d 1274, 1278 (10th Cir. 2017).\n\n A. 6-level enhancement\n\n\n\n\n 6\n\f Prior to sentencing, the government filed a written objection to the 6-level\n\nenhancement recommended in the PSR for substantial financial hardship to twenty-\n\nfive or more victims. The only ground stated for the objection was that the\n\ngovernment elected to stand by the plea agreement’s offense level calculation of a 2-\n\nlevel enhancement based on more than ten victims. Ms. McClaflin joined the\n\ngovernment’s objection. At sentencing, the district court explained its process for\n\napplying the 6-level enhancement and walked through its underlying findings of fact.\n\nWhen the court prompted Ms. McClaflin’s counsel to make any statement in regards\n\nto the written objection to the 6-level enhancement, defense counsel merely stated,\n\n“[i]t is the Government’s objection . . . not the defendant’s.” Rec., vol. IV at 22. The\n\njudge prompted counsel a second time “to make any statement for purposes of your\n\nrecord on appeal” and counsel reiterated that he did not have a statement. Id. Ms.\n\nMcClaflin’s claim that further objection would have been futile is thus unconvincing.\n\n We require that parties object with specificity so that the district court can\n\ncorrect its actions in the first instance. See, e.g., United States v. Holloway, 826 F.3d\n\n1237, 1251 (10th Cir. 2016); Robertson, 568 F.3d at 1209. Ms. McClaflin did not\n\nobject to the accuracy of the sworn victim impact statements nor to the district\n\ncourt’s reliance upon them. “We have repeatedly held that if a defendant fails to\n\nobject to his presentence report, he waives his right to challenge the district court’s\n\nreliance on it, unless the district court’s decision to do so amounts to plain error.”\n\nHolloway, 826 F.3d at 1251; see also United States v. Figueroa-Labrada, 720 F.3d\n\n\n\n\n 7\n\f1258, 1266 (10th Cir. 2013). Because Ms. McClaflin did not properly preserve the\n\nissue at sentencing, we review for plain error.\n\n The district court did not err by using the sworn victim impact statements to\n\nmake its own independent findings of fact. “The sentencing judge remains ultimately\n\nresponsible for determining the facts and must establish the relevant facts even if all\n\nthe parties argue to the contrary.” United States v. Aragon, 922 F.3d 1102, 1109\n\n(10th Cir. 2019) (internal brackets omitted). In determining the number of victims\n\nand calculating loss, a district court must make independent findings supporting its\n\nconclusions. Holloway, 826 F.3d at 1251. In doing so, the court can look beyond\n\nadmissible evidence at trial as long as the information has a sufficient indica of\n\nreliability to support its probable accuracy. See, e.g., United States v. Caiba-Antele,\n\n705 F.3d 1162, 1165 (10th Cir. 2012); see also United States v. Sunmola, 887 F.3d\n\n830, 836–37 (7th Cir. 2018); U.S.S.G. § 6A1.3(a).\n\n Here, the district court made independent factual findings by relying upon\n\nvictim impact statements that were submitted under penalty of perjury and whose\n\naccuracy was not disputed by any party. The court heard testimony from the\n\ngovernment’s IRS agent who likewise relied upon the victim impact statements.\n\nSpeaking in allocution, Ms. McClaflin referred to the statements, indicating she had\n\n“read them over and over and over . . ..” Rec., vol. IV at 101. At no point did Ms.\n\nMcClaflin raise any concerns or objection or otherwise contend that these sworn\n\nvictim impact statements were unreliable. Accordingly, the victim impact statements\n\nwere properly considered by the court.\n\n\n 8\n\f In calculating the number of victims who suffered substantial financial\n\nhardship2, the district court first determined that there were over ninety investors who\n\nwere defrauded by Ms. McClaflin, counting husband and wife couples together as\n\none victim. Of those ninety, sixty-three filed victim impact statements under penalty\n\nof perjury. Twenty-eight of these indicated that they had to make substantial changes\n\nto their employment or substantial changes to their living arrangements as a direct\n\nresult of Ms. McClaflin’s fraudulent scheme. At the very least the twenty-eight\n\nsworn statements meet the standard for substantial financial hardship laid out in the\n\nSentence Guidelines Application Note. See U.S.S.G. § 2B1.1, cmt. n.4(f) (iv), and\n\n(v). Because the district court’s consideration of this evidence was well within its\n\ndiscretion, the district court did not procedurally err in relying on the sworn victim\n\nimpact statements.\n\n B. § 3553(a) factors\n\n\n 2\n “Substantial Financial Hardship.—In determining whether the offense\nresulted in substantial financial hardship to a victim, the court shall consider, among\nother factors, whether the offense resulted in the victim—\n (i) becoming insolvent;\n (ii) filing for bankruptcy under the Bankruptcy Code (title 11, United States\nCode);\n (iii) suffering substantial loss of a retirement, education, or other savings or\ninvestment fund;\n (iv) making substantial changes to his or her employment, such as postponing\nhis or her retirement plans;\n (v) making substantial changes to his or her living arrangements, such as\nrelocating to a less expensive home; and\n (vi) suffering substantial harm to his or her ability to obtain credit.”\n\n U.S.S.G. § 2B1.1, cmt. n.4(f).\n\n\n 9\n\f Ms. McClaflin also claims the district court failed to properly consider all of the\n\nrelevant § 3553(a) factors before imposing its sentence. But, once again, she never\n\nobjected to the district court’s sentencing process at trial. We therefore review only\n\nfor plain error.\n\n Ms. McClaflin contends that the court did not ask to hear from counsel or the\n\ndefendant until after it had already made up its mind. She relies on the court’s\n\nstatement prior to sentencing that “I am inclined to grant a variant sentence\n\nsomewhere within that adjusted advisory guideline range . . . . However, I have not\n\ndecided where within that range of 87 to 108 months the sentence should actually\n\nbe.” Rec., vol. IV at 85-86. But Ms. McClaflin takes a single statement out of the\n\ncontext of the entire sentencing process. Overall that process shows that the district\n\ncourt proceeded properly and considered the requisite factors. For example, when\n\nthe court began it’s sentencing, it stated:\n\n I will tell you where I am going, in terms of my inclinations, so that\n you can target any arguments you have to what my concerns are, and\n to persuade me otherwise, or to persuade me to go the way I have\n indicated, if that is what you want. I will hear from [defense counsel],\n then [the government], and finally, if Ms. McClaflin wishes to make\n any statement to me on her own behalf, I will hear from her.\n\nId. at 73–74. The court thus clearly demonstrated that, although it had a general idea\n\nbased upon the PSR, it would hear from the parties involved before making the final\n\ndecision.\n\n Ms. McClaflin further contends the district court failed to consider other\n\nrelevant mitigating factors besides Ms. McClaflin’s cooperation with the government\n\n\n\n 10\n\fwhen imposing her sentence. We disagree. While the court put an emphasis on Ms.\n\nMcClaflin’s cooperation, this was not the only factor it considered. For example, the\n\ncourt clearly considered the nature and circumstances of the offense by noting the\n\nimpact of Ms. McClaflin’s scheme on her victims. It also noted that Ms. McClaflin\n\ndid not act in a manner entirely consistent with a woman who was truly sorry for her\n\nconduct, expressing concerns about Ms. McClaflin’s failure to account for personal\n\nassets and her divorce from her husband to secure his assets. With respect to the\n\n§ 3553(a) factors, “[w]e do not require a ritualistic incantation to establish\n\nconsideration of a legal issue, nor do we demand that the district court recite any\n\nmagic words to show us that it fulfilled its responsibility to be mindful of the factors\n\nthat Congress has instructed it to consider.” United States v. Lopez-Flores, 444 F.3d\n\n1218, 1223 (10th Cir. 2006) (citation omitted); see also United States v. Rines, 419\n\nF.3d 1104, 1107 (10th Cir. 2005) (“It is true that the district court did not march\n\nthrough § 3553(a)’s sentencing factors, but we have never imposed such a\n\nrequirement.”).\n\n Although Ms. McClaflin specifically alleges that the district court did not\n\nconsider her medical circumstances, the record reveals that in fact it did do so before\n\ndetermining that the Bureau of Prisons was better suited to decide which facilities\n\nand treatments were necessary. Rec., vol. IV at 115 (“I think the Bureau of Prisons\n\ncan sort out whether she really does have serious medical issues that are different\n\nfrom any of the other defendants that they see on a regular basis who have medical\n\n\n\n\n 11\n\fissues.”). The court was clearly aware of and considered Ms. McClaflin’s medical\n\nneeds at sentencing, but it did not deem them determinative, noting that Ms.\n\nMcClaflin was not at risk of undergoing a major procedure in the imminent future.\n\nBecause the district court clearly considered the relevant § 3553(a) factors, it did not\n\nplainly err when it sentenced Ms. McClaflin.\n\n We AFFIRM the judgment of the district court.\n\n\n\n\n 12\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. McClaflin\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-09-20\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS September 20, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n UNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 18-1217\\n\\n KAREN LYNN MCCLAFLIN,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Colorado\\n (D.C. No. 1:17-CR-00168-CMA-1)\\n _________________________________\\n\\nAnn Marie Taliaferro, Brown, Bradshaw & Moffat, L.L.P., Salt Lake City, Utah, for\\nDefendant-Appellant.\\n\\nJames C. Murphy, Assistant United States Attorney (Jason R. Dunn, United States\\nAttorney, with him on the brief), Denver Colorado, for Plaintiff-Appellee.\\n _________________________________\\n\\nBefore MATHESON, SEYMOUR, and BACHARACH, Circuit Judges.\\n _________________________________\\n\\nSEYMOUR, Circuit Judge.\\n _________________________________\\n\\n Defendant Karen McClaflin pled guilty to two counts stemming from the\\n\\noperation of a residential Ponzi scheme which defrauded investors of more than\\n\\n$14.5 million dollars. At sentencing, the district court calculated the advisory\\n\\nsentencing guidelines at 135 to 168 months’ imprisonment, applied a 6-level\\n\\fenhancement for substantial financial hardship to more than twenty-five victims, and\\n\\nthen determined that a downward variant sentence of 96 months was appropriate. On\\n\\nappeal, Ms. McClaflin argues the district court: (1) abused its discretion by denying\\n\\nher motion for an additional continuance of the sentencing hearing, (2) procedurally\\n\\nerred by imposing the 6-level enhancement based upon victim impact statements, and\\n\\n(3) failed to consider all of the requisite 18 U.S.C. § 3553(a) factors. We affirm.\\n\\n\\n\\n I.\\n\\n Between March 2011 and early 2017, Ms. McClaflin operated a “fix and flip”\\n\\nreal estate Ponzi scheme in which she made false promises to investors. On June 21,\\n\\n2017, Ms. McClaflin entered into a plea agreement with the government for wire\\n\\nfraud and money laundering. The plea deal included a 2-level enhancement for a\\n\\ncrime involving more than ten victims. The government indicated that it did not have\\n\\nthe evidence at that time to support a 6-level enhancement for substantial financial\\n\\nhardship to more than twenty-five victims.\\n\\n The parties jointly filed a motion to continue on September 1, 2017, and the\\n\\ndistrict court moved the sentencing hearing set for January 17, 2018 to March 14 to\\n\\ngive the parties more time to analyze documents regarding loss and restitution. On\\n\\nMarch 5, counsel for Ms. McClaflin requested another continuance due to Ms.\\n\\nMcClaflin’s poor health and hip problems. The district court moved the sentencing\\n\\nhearing to May 10, nearly an entire year after Ms. McClaflin pled guilty to the\\n\\n\\n\\n\\n 2\\n\\fcharges. The week of the hearing Ms. McClaflin again requested her sentencing be\\n\\ncontinued on the grounds of her ill health. The district court denied the motion and it\\n\\nrepeated this denial when Ms. McClaflin’s counsel urged a continuance at the\\n\\nsentencing hearing.\\n\\n At sentencing, the court questioned the government’s decision not to pursue\\n\\nthe 6-level enhancement. Notwithstanding the government’s reticence and in order to\\n\\nimplement the enhancement, the district court conducted an extensive review of the\\n\\nsworn victim impact statements attached to the presentence Report (“PSR”). The\\n\\ncourt made independent findings of fact regarding Ms. McClaflin’s scheme and\\n\\nspecifically found that Ms. McClaflin’s offense resulted in substantial financial\\n\\nhardship to twenty-five or more victims. See U.S.S.G. § 2B1.1(b)(2)(C).\\n\\n Prior to passing sentence, the district court heard testimony from victims of\\n\\nMs. McClaflin’s scheme from the Receiver who had been appointed by the court to\\n\\nrecover assets related to the scheme, and from Ms. McClaflin herself. Finding that\\n\\nMs. McClaflin committed a level 33 offense with a criminal history category of I,\\n\\nresulting in an advisory imprisonment range between 135 and 168 months, the court\\n\\ndetermined a downward variant sentence of 96 months was warranted. Ms.\\n\\nMcClaflin appeals.\\n\\n\\n\\n II.\\n\\n We review the denial of a motion for continuance for abuse of discretion and\\n\\nwill only find error if the district court’s decision was “arbitrary or unreasonable and\\n\\n\\n 3\\n\\fmaterially prejudiced” the defendant. Rogers v. Andrus Transp. Services, 502 F.3d\\n\\n1147, 1151 (10th Cir. 2007). In determining whether the denial of a continuance\\n\\nconstitutes an abuse of discretion, we look to the individual circumstances of the\\n\\ncase. Id.\\n\\n The framework for reviewing the denial of a motion for a continuance\\n\\n“involves an examination of four factors: (1) the diligence of the party seeking the\\n\\ncontinuance; (2) the likelihood the continuance, if granted, would have accomplished\\n\\nthe stated purpose; (3) the inconvenience to the opposing party, witnesses, and the\\n\\ncourt; and (4) the need for the continuance and any harm resulting from its denial.”\\n\\nUnited States v. Glaub, 910 F.3d 1334, 1345 (10th Cir. 2018). “The final factor is\\n\\nthe most important.” United States v. Orr, 692 F.3d 1079, 1100 (10th Cir. 2012).\\n\\n Of those four factors, Ms. McClaflin has not clearly satisfied any of them. Ms.\\n\\nMcClaflin’s counsel admitted that he was not prepared for the sentencing hearing,\\n\\nthat he had not sufficiently talked to witnesses, and that he had not explained the\\n\\nextent of Ms. McClaflin’s medical condition or ascertained proper facilities through\\n\\nthe BOP. Nor had he filed a motion for a variant sentence. There was not a high\\n\\nlikelihood that if a continuance were granted, Ms. McClaflin’s health would improve\\n\\nmuch more than it already had. The district court noted that Ms. McClaflin was not\\n\\nundergoing an imminent medical procedure, and Ms. McClaflin’s counsel conceded\\n\\nthat her hip infection was “as low as it can be right now.” Rec., vol. IV at 11.\\n\\n Conversely, granting the continuance would have greatly inconvenienced the\\n\\n\\n\\n\\n 4\\n\\fopposing party and the court. Ms. McClaflin requested the continuance a mere five\\n\\ndays before the hearing was set to commence, and it is likely that the victims and\\n\\nwitnesses had previously made preparations to attend. The district court already had\\n\\ngranted Ms. McClaflin and the government almost a year to review financial\\n\\ninformation and to prepare for sentencing, and it would have been required to\\n\\nrearrange its calendar even further in order to grant Ms. McClaflin a new hearing\\n\\ndate.\\n\\n Significantly, Ms. McClaflin has failed to demonstrate prejudice. In United\\n\\nStates v. West, 828 F.2d 1468, 1471 (10th Cir. 1987), we held that the district court\\n\\nabused its discretion in denying the requested continuance because it precluded the\\n\\ndefendant from calling “the only eyewitness who might have presented directly\\n\\nexculpatory testimony.” 1 There,“the testimony was important and the prejudice\\n\\nresulting from the denial of a continuance was severe.” Id. Here, however, the\\n\\ncontinuance would merely allow Ms. McClaflin to accumulate additional mitigating\\n\\nevidence. The district court did not abuse its discretion in denying the motion for a\\n\\ncontinuance.\\n\\n\\n\\n\\n 1\\n In West, 828 F.2d at 1470, the defendant’s primary defense to a first-degree\\nmurder charge was that he did not strike the victim and was therefore innocent. The\\ncourt denied the defendant’s continuance motion until the next day, even when a\\nsubpoenaed witness who would testify that the defendant did not strike the victim did\\nnot appear on the day he was called and a reasonable possibility existed he would\\nvoluntarily appear the next day. Id. at 1470–71.\\n\\n 5\\n\\f III.\\n\\n Ms. McClaflin also contends that the district court made two procedural errors:\\n\\nfirst, by relying on sworn victim impact statements to sua sponte impose the 6-level\\n\\nenhancement; and second by failing to consider the requisite § 3553(a) factors. The\\n\\nparties disagree on the relevant standard of review.\\n\\n “Fairness and judicial efficiency demand that litigants notify the district court\\n\\nof a procedural sentencing error with reasonable specificity, thereby providing that\\n\\ncourt the opportunity to correct its action in the first instance.” United States v.\\n\\nRobertson, 568 F.3d 1203, 1209 (10th Cir. 2009). We require timely objections so\\n\\nthe district court can consider and resolve them at the time they are raised and\\n\\nbecause “[i]n the case of an actual or invited procedural error, the district court can\\n\\noften correct or avoid the mistake so that it cannot possibly affect the ultimate\\n\\noutcome.” Puckett v. United States, 556 U.S. 129, 134 (2009). It is Ms. McClaflin’s\\n\\nposition that she properly objected to the procedural errors and any failure to\\n\\npreserve the issues was excused because it was plain that further objection would\\n\\nhave been futile. On the other hand, the government contends these claims were not\\n\\nproperly objected to and should only be reviewed for plain error, which requires there\\n\\nbe an “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4)\\n\\nseriously affects the fairness, integrity, or public reputation of judicial proceedings.”\\n\\nUnited States v. Wright, 848 F.3d 1274, 1278 (10th Cir. 2017).\\n\\n A. 6-level enhancement\\n\\n\\n\\n\\n 6\\n\\f Prior to sentencing, the government filed a written objection to the 6-level\\n\\nenhancement recommended in the PSR for substantial financial hardship to twenty-\\n\\nfive or more victims. The only ground stated for the objection was that the\\n\\ngovernment elected to stand by the plea agreement’s offense level calculation of a 2-\\n\\nlevel enhancement based on more than ten victims. Ms. McClaflin joined the\\n\\ngovernment’s objection. At sentencing, the district court explained its process for\\n\\napplying the 6-level enhancement and walked through its underlying findings of fact.\\n\\nWhen the court prompted Ms. McClaflin’s counsel to make any statement in regards\\n\\nto the written objection to the 6-level enhancement, defense counsel merely stated,\\n\\n“[i]t is the Government’s objection . . . not the defendant’s.” Rec., vol. IV at 22. The\\n\\njudge prompted counsel a second time “to make any statement for purposes of your\\n\\nrecord on appeal” and counsel reiterated that he did not have a statement. Id. Ms.\\n\\nMcClaflin’s claim that further objection would have been futile is thus unconvincing.\\n\\n We require that parties object with specificity so that the district court can\\n\\ncorrect its actions in the first instance. See, e.g., United States v. Holloway, 826 F.3d\\n\\n1237, 1251 (10th Cir. 2016); Robertson, 568 F.3d at 1209. Ms. McClaflin did not\\n\\nobject to the accuracy of the sworn victim impact statements nor to the district\\n\\ncourt’s reliance upon them. “We have repeatedly held that if a defendant fails to\\n\\nobject to his presentence report, he waives his right to challenge the district court’s\\n\\nreliance on it, unless the district court’s decision to do so amounts to plain error.”\\n\\nHolloway, 826 F.3d at 1251; see also United States v. Figueroa-Labrada, 720 F.3d\\n\\n\\n\\n\\n 7\\n\\f1258, 1266 (10th Cir. 2013). Because Ms. McClaflin did not properly preserve the\\n\\nissue at sentencing, we review for plain error.\\n\\n The district court did not err by using the sworn victim impact statements to\\n\\nmake its own independent findings of fact. “The sentencing judge remains ultimately\\n\\nresponsible for determining the facts and must establish the relevant facts even if all\\n\\nthe parties argue to the contrary.” United States v. Aragon, 922 F.3d 1102, 1109\\n\\n(10th Cir. 2019) (internal brackets omitted). In determining the number of victims\\n\\nand calculating loss, a district court must make independent findings supporting its\\n\\nconclusions. Holloway, 826 F.3d at 1251. In doing so, the court can look beyond\\n\\nadmissible evidence at trial as long as the information has a sufficient indica of\\n\\nreliability to support its probable accuracy. See, e.g., United States v. Caiba-Antele,\\n\\n705 F.3d 1162, 1165 (10th Cir. 2012); see also United States v. Sunmola, 887 F.3d\\n\\n830, 836–37 (7th Cir. 2018); U.S.S.G. § 6A1.3(a).\\n\\n Here, the district court made independent factual findings by relying upon\\n\\nvictim impact statements that were submitted under penalty of perjury and whose\\n\\naccuracy was not disputed by any party. The court heard testimony from the\\n\\ngovernment’s IRS agent who likewise relied upon the victim impact statements.\\n\\nSpeaking in allocution, Ms. McClaflin referred to the statements, indicating she had\\n\\n“read them over and over and over . . ..” Rec., vol. IV at 101. At no point did Ms.\\n\\nMcClaflin raise any concerns or objection or otherwise contend that these sworn\\n\\nvictim impact statements were unreliable. Accordingly, the victim impact statements\\n\\nwere properly considered by the court.\\n\\n\\n 8\\n\\f In calculating the number of victims who suffered substantial financial\\n\\nhardship2, the district court first determined that there were over ninety investors who\\n\\nwere defrauded by Ms. McClaflin, counting husband and wife couples together as\\n\\none victim. Of those ninety, sixty-three filed victim impact statements under penalty\\n\\nof perjury. Twenty-eight of these indicated that they had to make substantial changes\\n\\nto their employment or substantial changes to their living arrangements as a direct\\n\\nresult of Ms. McClaflin’s fraudulent scheme. At the very least the twenty-eight\\n\\nsworn statements meet the standard for substantial financial hardship laid out in the\\n\\nSentence Guidelines Application Note. See U.S.S.G. § 2B1.1, cmt. n.4(f) (iv), and\\n\\n(v). Because the district court’s consideration of this evidence was well within its\\n\\ndiscretion, the district court did not procedurally err in relying on the sworn victim\\n\\nimpact statements.\\n\\n B. § 3553(a) factors\\n\\n\\n 2\\n “Substantial Financial Hardship.—In determining whether the offense\\nresulted in substantial financial hardship to a victim, the court shall consider, among\\nother factors, whether the offense resulted in the victim—\\n (i) becoming insolvent;\\n (ii) filing for bankruptcy under the Bankruptcy Code (title 11, United States\\nCode);\\n (iii) suffering substantial loss of a retirement, education, or other savings or\\ninvestment fund;\\n (iv) making substantial changes to his or her employment, such as postponing\\nhis or her retirement plans;\\n (v) making substantial changes to his or her living arrangements, such as\\nrelocating to a less expensive home; and\\n (vi) suffering substantial harm to his or her ability to obtain credit.”\\n\\n U.S.S.G. § 2B1.1, cmt. n.4(f).\\n\\n\\n 9\\n\\f Ms. McClaflin also claims the district court failed to properly consider all of the\\n\\nrelevant § 3553(a) factors before imposing its sentence. But, once again, she never\\n\\nobjected to the district court’s sentencing process at trial. We therefore review only\\n\\nfor plain error.\\n\\n Ms. McClaflin contends that the court did not ask to hear from counsel or the\\n\\ndefendant until after it had already made up its mind. She relies on the court’s\\n\\nstatement prior to sentencing that “I am inclined to grant a variant sentence\\n\\nsomewhere within that adjusted advisory guideline range . . . . However, I have not\\n\\ndecided where within that range of 87 to 108 months the sentence should actually\\n\\nbe.” Rec., vol. IV at 85-86. But Ms. McClaflin takes a single statement out of the\\n\\ncontext of the entire sentencing process. Overall that process shows that the district\\n\\ncourt proceeded properly and considered the requisite factors. For example, when\\n\\nthe court began it’s sentencing, it stated:\\n\\n I will tell you where I am going, in terms of my inclinations, so that\\n you can target any arguments you have to what my concerns are, and\\n to persuade me otherwise, or to persuade me to go the way I have\\n indicated, if that is what you want. I will hear from [defense counsel],\\n then [the government], and finally, if Ms. McClaflin wishes to make\\n any statement to me on her own behalf, I will hear from her.\\n\\nId. at 73–74. The court thus clearly demonstrated that, although it had a general idea\\n\\nbased upon the PSR, it would hear from the parties involved before making the final\\n\\ndecision.\\n\\n Ms. McClaflin further contends the district court failed to consider other\\n\\nrelevant mitigating factors besides Ms. McClaflin’s cooperation with the government\\n\\n\\n\\n 10\\n\\fwhen imposing her sentence. We disagree. While the court put an emphasis on Ms.\\n\\nMcClaflin’s cooperation, this was not the only factor it considered. For example, the\\n\\ncourt clearly considered the nature and circumstances of the offense by noting the\\n\\nimpact of Ms. McClaflin’s scheme on her victims. It also noted that Ms. McClaflin\\n\\ndid not act in a manner entirely consistent with a woman who was truly sorry for her\\n\\nconduct, expressing concerns about Ms. McClaflin’s failure to account for personal\\n\\nassets and her divorce from her husband to secure his assets. With respect to the\\n\\n§ 3553(a) factors, “[w]e do not require a ritualistic incantation to establish\\n\\nconsideration of a legal issue, nor do we demand that the district court recite any\\n\\nmagic words to show us that it fulfilled its responsibility to be mindful of the factors\\n\\nthat Congress has instructed it to consider.” United States v. Lopez-Flores, 444 F.3d\\n\\n1218, 1223 (10th Cir. 2006) (citation omitted); see also United States v. Rines, 419\\n\\nF.3d 1104, 1107 (10th Cir. 2005) (“It is true that the district court did not march\\n\\nthrough § 3553(a)’s sentencing factors, but we have never imposed such a\\n\\nrequirement.”).\\n\\n Although Ms. McClaflin specifically alleges that the district court did not\\n\\nconsider her medical circumstances, the record reveals that in fact it did do so before\\n\\ndetermining that the Bureau of Prisons was better suited to decide which facilities\\n\\nand treatments were necessary. Rec., vol. IV at 115 (“I think the Bureau of Prisons\\n\\ncan sort out whether she really does have serious medical issues that are different\\n\\nfrom any of the other defendants that they see on a regular basis who have medical\\n\\n\\n\\n\\n 11\\n\\fissues.”). The court was clearly aware of and considered Ms. McClaflin’s medical\\n\\nneeds at sentencing, but it did not deem them determinative, noting that Ms.\\n\\nMcClaflin was not at risk of undergoing a major procedure in the imminent future.\\n\\nBecause the district court clearly considered the relevant § 3553(a) factors, it did not\\n\\nplainly err when it sentenced Ms. McClaflin.\\n\\n We AFFIRM the judgment of the district court.\\n\\n\\n\\n\\n 12\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4488,"cells":{"id":{"kind":"number","value":4662896,"string":"4,662,896"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Kenney v. Helix TCS"},"decision_date":{"kind":"string","value":"2019-09-20"},"docket_number":{"kind":"string","value":"18-1105"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Tenth Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before HARTZ, SEYMOUR, and EID, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"SEYMOUR, Circuit Judge.\", \"type\": \"010combined\", \"text\": \"FILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS September 20, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n ROBERT KENNEY, individually and on\\n behalf of all others similarly situated,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 18-1105\\n\\n HELIX TCS, INC.,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Colorado\\n (D.C. No. 1:17-CV-01755-CMA-KMT)\\n _________________________________\\n\\nJordan D. Factor, (Jeremy T. Jonsen and Carissa V. Sears, with him on the briefs) Allen\\nVellone Wolf Helfrich & Factor, P.C., Denver, Colorado, for Defendant-Appellant.\\n\\nLyndsay R. Itkin, (Michael Andrew Josephson, with her on the brief) Josephson Dunlap\\nLaw Firm, Houston, Texas for Plaintiff-Appellee.\\n _________________________________\\n\\nBefore HARTZ, SEYMOUR, and EID, Circuit Judges.\\n _________________________________\\n\\nSEYMOUR, Circuit Judge.\\n _________________________________\\n\\n Plaintiff Robert Kenney is a former employee of Defendant Helix TCS, Inc.\\n\\n(“Helix”), which provides security services for businesses in Colorado’s state-\\n\\nsanctioned marijuana industry. Mr. Kenney filed this lawsuit against Helix under the\\n\\fFair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201–219, alleging that Helix\\n\\nmisclassified him and similarly situated workers as exempt from the FLSA’s\\n\\novertime obligations. Helix moved to dismiss Mr. Kenney’s claim based on the\\n\\nControlled Substance Act (“CSA”), 21 U.S.C. §801, et seq, arguing that Mr.\\n\\nKenney’s employment activities are in violation of the CSA and are thus not entitled\\n\\nto FLSA protections. The district court denied Helix’s motion to dismiss. We\\n\\naffirm.\\n\\n\\n\\n I.\\n\\n Between approximately February 2016 and April 2017, Mr. Kenney worked as\\n\\na security guard for Helix. Mr. Kenney alleges that he and other similarly situated\\n\\nsecurity guards regularly worked more than forty hours per week. Nevertheless,\\n\\nHelix classified these workers as exempt employees under the FLSA and paid them a\\n\\nsalary instead of overtime. Mr. Kenney initiated this action against Helix under the\\n\\ncollective action provisions of the FLSA, see 29 U.S.C. § 216(b), contending that\\n\\nHelix misclassified the security guards as exempt employees even though they\\n\\nfrequently performed non-exempt job duties. He claims Helix is in violation of 29\\n\\nU.S.C. § 207(a) by willfully failing to pay overtime.\\n\\n Helix provides security, inventory control, and compliance services to the\\n\\nmarijuana industry in Colorado. Kenney v. Helix TCS, Inc., 284 F. Supp. 3d 1186,\\n\\n1188 (D. Colo. 2018). Mr. Kenney’s job duties at Helix included monitoring security\\n\\n\\n\\n 2\\n\\fcameras, patrolling assigned locations, investigating and documenting all facility-\\n\\nrelated incidents, and enforcing client, local, state, and federal policies and\\n\\nregulations. Id. Helix asserts that the FLSA does not apply to workers such as Mr.\\n\\nKenney because Colorado’s recreational marijuana industry is in violation of the\\n\\nControlled Substances Act. It therefore moved to dismiss Mr. Kenney’s FLSA claim\\n\\nfor want of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure\\n\\nor, alternatively, under Rule 12(b)(6) for failure to state a claim.\\n\\n The district court denied Helix’s motion to dismiss and then certified Helix’s\\n\\ninterlocutory appeal of its order. Exercising jurisdiction pursuant to 28 U.S.C.\\n\\n§ 1292(b), we affirm.\\n\\n\\n\\n II.\\n\\n Both parties agree that we review de novo the district court’s denial of Helix’s\\n\\nmotions to dismiss. A Rule 12(b)(1) motion to dismiss only requires the court to\\n\\ndetermine whether it has authority to adjudicate the matter. Helix argued below that\\n\\nthe district court lacked subject matter jurisdiction because there is no federal interest\\n\\nat stake. The district court correctly rejected this argument, identifying it as a\\n\\nchallenge to the legal sufficiency of Mr. Kenney’s claims rather than the jurisdiction\\n\\nof the federal courts. Kenney, 284 F. Supp. 3d at 1189 (citing Arbaugh v. Y & H\\n\\nCorp., 546 U.S. 500, 516 (2006) (holding statute’s definitional requirement of who\\n\\nqualifies as employer “is an element of a plaintiff’s claim for relief, not a\\n\\n\\n\\n 3\\n\\fjurisdictional issue”)). Helix only cursorily mentioned this argument in its opening\\n\\nbrief and dropped the issue entirely in its reply brief.\\n\\n A Rule 12(b)(6) motion to dismiss requires the court to evaluate the\\n\\nsufficiency of the plaintiff’s allegations. “At this stage in the litigation, we accept as\\n\\ntrue the well pleaded factual allegations and then determine if the plaintiff has\\n\\nprovided enough facts to state a claim to relief that is plausible on its face.” Hogan\\n\\nv. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (internal citation and quotation\\n\\nmarks omitted). “A claim has facial plausibility when the plaintiff pleads factual\\n\\ncontent that allows the court to draw the reasonable inference that the defendant is\\n\\nliable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).\\n\\n\\n\\n III.\\n\\n Whether § 207(a) of the FLSA applies to Mr. Kenney is an issue of statutory\\n\\ninterpretation, which always begins with the plain language of the statute. See, e.g.,\\n\\nArtis v. D.C., 138 S. Ct. 594, 603 (2018). To state a claim for a violation of this\\n\\nFLSA provision, a plaintiff merely must show that he is an employee who (a) worked\\n\\nmore than forty hours per week, and (b) is either “engaged in commerce or in the\\n\\nproduction of goods for commerce” or “employed in an enterprise engaged in\\n\\ncommerce or in the production of goods for commerce.” 29 U.S.C. § 207(a)(1). The\\n\\nstatute then enumerates certain categories of employees that are explicitly exempted\\n\\nfrom FLSA protections, regardless of whether they meet these requirements. The\\n\\n\\n\\n 4\\n\\femployer bears the burden to prove that an exemption under the FLSA applies to the\\n\\nplaintiff. See, e.g., Lederman v. Frontier Fire Protection Inc., 685 F. 3d 1151, 1157–\\n\\n58 (10th Cir. 2012). Our case law confirms that FLSA protections apply unless an\\n\\nestablishment fits “plainly and unmistakably within the terms and the spirit of the\\n\\nexemption invoked.” Schoenhals v. Cockrum, 647 F.2d 1080, 1081 (10th Cir. 1981).\\n\\n Helix does not dispute the fact that Mr. Kenney is an employee who worked\\n\\nmore than forty hours per week, and Mr. Kenney has clearly alleged that he is\\n\\ncovered by the plain language of the FLSA.1 Nor does Helix argue that Mr. Kenney\\n\\nfits into one of the FLSA’s enumerated categories of excluded employees. As the\\n\\nSupreme Court has long emphasized, where the statute’s language is plain the sole\\n\\nfunction of the courts is to enforce it according to its terms. Lucas v. Jerusalem\\n\\nCafé, LLC., 721 F.3d 927, 934 (8th Cir. 2013) (citing United States v. Ron Pair\\n\\nEnters., Inc., 489 U.S. 235, 241 (1989)). So Helix’s challenge “must fail unless [it]\\n\\ncan point to a different statutory basis for limiting ‘the broadest definition that has\\n\\never been included in any one act.’” Lucas, 721 F.3d at 934 (quoting 81 Cong. Rec.\\n\\n\\n\\n\\n 1\\n Helix does contest the allegation that it engages in commerce within the\\nmeaning of the FLSA, see generally 29 U.S.C. § 203(b) (“‘Commerce’ means trade,\\ncommerce, transportation, transmission, or communication among the several States\\nor between any State and any place outside thereof.”), arguing for the first time on\\nappeal that Colorado’s marijuana industry is only authorized within the state’s\\nborders. But Helix has waived this argument by raising it for the first time on appeal.\\nSee Hormel v. Helvering, 312 U.S. 552, 556 (1941); Tele–Communications, Inc. v.\\nCommissioner of Internal Revenue, 12 F.3d 1005, 1007 (10th Cir. 1993).\\n\\n\\n 5\\n\\f7656–57 (1937) (statement of Sen. Black)). 2\\n\\n Although Helix sidesteps the disfavored phrase “implied repeal” and claims to\\n\\nmerely be reading the statutes in harmony with each other, in effect it proposes that\\n\\nwe interpret the CSA as implicitly repealing the FLSA’s overtime mandate for\\n\\nemployers in the marijuana industry. See Epic Systems Corp v. Lewis, 138 S. Ct.\\n\\n1612, 1623–24 (2018). Construing this as Helix’s true argument is particularly\\n\\naccurate in light of marijuana’s history as a legal industry. See, e.g., Marihuana Tax\\n\\nAct, 50 Stat. 551 (repealed 1970) (regulating all persons dealing with marijuana,\\n\\nincluding companies and corporations); see also Raich, 545 U.S. at 11 (explaining\\n\\nhistory of marijuana regulation). Prior to enactment of the CSA in 1970, the FLSA\\n\\nunquestionably covered these workers. The Supreme Court recently reiterated that an\\n\\nimplied repeal argument “faces a stout uphill climb.” Epic Systems, 138 S. Ct. at\\n\\n1624. We approach these arguments with a “strong presumption that repeals by\\n\\nimplication are disfavored and that Congress will specifically address preexisting law\\n\\nwhen it wishes to suspend its normal operations in a later statute.” Id. (citation,\\n\\nquotation marks, and brackets omitted). And, as Helix itself declares, Congress is\\n\\n\\n\\n 2\\n Helix develops several lines of argument that do not bear on the resolution of\\nthis appeal. Helix frames the issue as one of preemption by setting state-sanctioned\\nmarijuana use in opposition to the CSA, lengthily addresses federal enforcement of\\nthe CSA with respect to marijuana offenses, and examines state court treatment of\\nemployment protections in the context of marijuana use. None of these arguments\\npertain to the present case, which concerns not the federal legality of marijuana but\\nthe interaction between two federal laws and the resultant application of the FLSA to\\nthe plaintiffs here.\\n\\n 6\\n\\fpresumed to know the law when legislating. Aplt. Br. at 19; see also In re Harline,\\n\\n950 F.2d 669, 675 (10th Cir. 1991).\\n\\n Helix argues that inclusion of Mr. Kenney under the FLSA is an overly\\n\\ntechnical reading of the statute, and that legislative intent with respect to this issue\\n\\nmust be inferred from the distinctive purposes of the FLSA and the CSA as the two\\n\\nstatutes in question. Helix contrasts the purpose of the FLSA, which it identifies as\\n\\nensuring “the free flow of goods in commerce” and “the orderly and fair marketing of\\n\\ngoods in commerce,” Aplt. Br. at 20 (citing 29 U.S.C. § 202), from the purpose of the\\n\\nlater-enacted CSA, which it describes as “eliminat[ing] commercial transactions of\\n\\nmarijuana in the interstate market in their entirety.” Id. (citing Raich, 545 U.S. at 20)\\n\\n(brackets omitted). Helix then asserts that Mr. Kenney’s interpretation of the FLSA\\n\\nwould “create a clear repugnancy” between it and the CSA and impermissibly render\\n\\nthe two laws mutually inconsistent. Aplt. Br. at 21. “Extending overtime benefits in\\n\\nthis case would require the Court to find that Congress intended to both forbid (under\\n\\nthe CSA) and reward (under the FLSA) the same conduct: drug trafficking.” Id.\\n\\n As outlined below, however, “case law is clear that employers are not excused\\n\\nfrom complying with federal laws” because of their other federal violations. Kenney,\\n\\n284 F. Supp. 3d at 1190; accord United States v. Sullivan, 274 U.S. 259 (1927)\\n\\n(holding there was no reason “why the fact that a business is unlawful should exempt\\n\\nit from paying the taxes that if lawful it would have to pay”); Lucas, 721 F.3d at 934\\n\\n(“The employers’ argument to the contrary rests on a legal theory as flawed today as\\n\\n\\n\\n 7\\n\\fit was in 1931 when jurors convicted Al Capone of failing to pay taxes on illicit\\n\\nincome.”). Contrary to Helix’s claims, recognizing Mr. Kenney as covered by the\\n\\nFLSA is in line with both the plain reading and the overall purposes of that statute,\\n\\nand doing so does not require disavowal of the CSA.\\n\\n As we recognized in Baker v. Flint Engineering & Const. Co., 137 F.3d 1436,\\n\\n1440 (10th Cir. 1998), the Supreme Court has emphasized the “striking breadth” of\\n\\nthe FLSA’s definition of employee, which is purposefully expansive to maximize the\\n\\nfull reach of the Act, see United States v. Rosenwasser, 323 U.S. 360, 363 (1945).\\n\\nCongress has shown that it knows how to limit this broad definition of employee\\n\\nwhen it intends to do so, and it did not do so here. See 29 U.S.C. § 203(e); see also\\n\\nLucas, 721 F.3d at 934 (applying FLSA to unauthorized immigrants). Congress has\\n\\nactually amended the FLSA many times since the enactment of the CSA without\\n\\nexcluding employees working in the marijuana industry, despite specifically\\n\\nexempting other categories of workers. See 29 U.S.C. § 213. The Supreme Court\\n\\nhas held that the FLSA’s “specificity in stating exemptions strengthens the\\n\\nimplication that employees not thus exempted . . . remain within the Act.” Powell v.\\n\\nUnited States Cartridge Co., 339 U.S. 497, 516–17 (1950); accord Citicorp Indus.\\n\\nCredit, Inc. v. Brock, 483 U.S. 27, 35 (1987) (“[W]here the FLSA provides\\n\\nexemptions ‘in detail and with particularity,’ we have found this to preclude\\n\\n‘enlargement by implication.’”) Deherrera v. Decker Truck Line, Inc., 820 F.3d\\n\\n1147, 1154 (10th Cir. 2016) (“Because FLSA exemptions are narrowly construed\\n\\n\\n\\n 8\\n\\fagainst . . . employers, in considering an FLSA exemption, a court must find that the\\n\\nclaimed exemption falls plainly and unmistakably within the terms of the statute.”)\\n\\n(internal citations and quotation marks omitted).\\n\\n Moreover, the purposes of the FLSA do not conflict with the CSA quite as\\n\\ndirectly as Helix implies. Helix cherry-picks among the enumerated purposes of the\\n\\nFLSA, citing only those most favorable to its arguments. But the FLSA was also\\n\\nenacted to promote “the health, efficiency, and general well-being of workers” and to\\n\\nprevent unfair competition. 29 U.S.C. § 202; see also Brock, 483 U.S. at 36–37\\n\\n(clarifying that FLSA contains more than one goal, including “Congress’ desire to\\n\\neliminate the competitive advantage enjoyed by goods produced under substandard\\n\\nconditions”). The FLSA is a remedial scheme for the benefit of all workers.\\n\\nAnderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946); see also Lamon v.\\n\\nCity of Shawnee, Kan., 972 F.2d 1145, 1149 (10th Cir. 1992). Applying the FLSA to\\n\\nworkers such as Mr. Kenney does not conflict with these enumerated FLSA purposes.\\n\\n Helix counters that “Congress did not seek to level the same playing field that\\n\\nit tried to demolish.” Aplt. Reply Br. at 5. But adhering to the plain language of the\\n\\nstatute here does not level the playing field within the illicit marijuana market but\\n\\nrather beyond it, preventing these unlawful businesses from procuring an unfair\\n\\nadvantage over all other legitimate employers who are required to comply with\\n\\nfederal overtime laws. Indeed, applying FLSA protections to workers such as Mr.\\n\\nKenney will not grant these individuals any surplus benefit that they cannot easily\\n\\n\\n\\n 9\\n\\fobtain elsewhere, but the reverse would excuse Helix from FLSA costs and\\n\\nobligations and thereby allow it to reap additional benefit from its CSA violations.\\n\\nDenying FLSA protection to workers in the marijuana industry would consequently\\n\\nencourage employers to engage in illegal markets where they are subject to fewer\\n\\nrequirements. But together the FLSA and CSA discourage businesses from\\n\\nparticipating in the marijuana industry by alternatively subjecting them to federal\\n\\nlabor obligations and imposing criminal sanctions.3 Accordingly, accepting the plain\\n\\nlanguage interpretation that Mr. Kenney and similarly situated employees are covered\\n\\nby the FLSA promotes the legislature’s intent in enacting the statute. See Brock, 483\\n\\n\\n\\n 3\\n Helix’s opening brief cites a variety of jurisprudential arenas as supporting\\nthe contention that federal courts “consistently decline to reward participation in the\\nmarijuana industry.” Aplt. Br. at 10. The only context Helix continued to argue\\nthrough oral argument is the Trademark Act. Beyond noting that Mr. Kinney\\nconvincingly distinguishes each of the contexts and relevant authorities that Helix\\ncites, we will similarly restrict our analysis. A trademark qualifies for registration\\nand its associated benefits if the trademark owner has “used [the mark] in commerce”\\nor has a bona fide intent to do so, 15 U.S.C. § 105, and courts have long held that the\\ncommerce must be “lawful” for it to satisfy the “use in commerce” requirement. See,\\ne.g., United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1225 (10th\\nCir. 2000). Helix urges us to adopt a similar interpretation for the FLSA. Although\\nthe Trademark Act and FLSA both regulate interstate commerce, however, they\\nfunction in fundamentally different ways. The Trademark Act confers a benefit on\\nowners who register their marks, securing a registrant’s right to benefit from a good\\nreputation and thus protecting him from unfair competition. See Matal v. Tam, 137\\nS. Ct. 1744, 1752–53 (2017). The FLSA, in contrast, prevents unfair competition,\\nnot by conferring a benefit on certain actors but by imposing obligations across the\\nlabor market. Reading “lawful” into the threshold commerce requirement here would\\nnot further the statute’s purposes by denying illegal businesses a benefit, as in the\\ntrademark context, but would thwart the FLSA’s goals by exempting illicit markets\\nfrom costs imposed on lawful employers.\\n\\n\\n 10\\n\\fU.S. at 35–36 (“Petitioner urges us to look beyond the plain language of the statute . .\\n\\n. . However, we conclude that the legislative intent fully supports the result achieved\\n\\nby application of the plain language.”).\\n\\n The district court correctly reasoned and case law has repeatedly confirmed\\n\\nthat employers are not excused from complying with federal laws just because their\\n\\nbusiness practices are federally prohibited. See, e.g., Sullivan, 274 U.S. at 263; see\\n\\nalso Greenwood v. Green Leaf Lab LLC, 2017 WL 3391671 at *3 (D. Or. July 13,\\n\\n2017), adopted by district court, 2017 WL 3391671 (D. Or. Aug. 7, 2017) (“[J]ust\\n\\nbecause an Employer is violating one federal law, does not give it license to violate\\n\\nanother.”) (internal citation omitted). This has been true with respect to the FLSA in\\n\\nmultiple contexts, strengthening the conclusion that it remains true in this novel\\n\\ncontext of the marijuana industry. See Donovan v. Burgett Greenhouses, Inc., 759\\n\\nF.2d 1483, 1485 (10th Cir. 1985); Bustamente, 2018 WL 2349507 at *1 (workers in\\n\\nan illegal gambling operation).4 Persuasive case law endorses the concept that the\\n\\nFLSA is focused on regulating the activity of businesses, in part on behalf of the\\n\\nindividual workers’ wellbeing, rather than regulating the legality of individual\\n\\nworkers’ activities. See, e.g., Haro v. City of Los Angeles, 745 F.3d 1249, 1256 (9th\\n\\n\\n 4\\n Helix attempts to distinguish these cases on the basis that those employees\\nwere engaging in entirely lawful commercial activities, whereas the employees here\\nare engaged in activities that violate the CSA. This argument is not convincing. The\\nillegal nature of the gambling activity in Bustamente was directly acknowledged by\\nthe court in a footnote, and the innocuous nature of the work being performed by\\nundocumented immigrants in the other cases discussed does not offset their active\\nviolations of federal law in obtaining work.\\n\\n 11\\n\\fCir. 2014). (“The FLSA is to be construed liberally in favor of employees;\\n\\nexemptions are narrowly construed against employers.”).\\n\\n Notably, Helix failed entirely to address the Oregon district court case that was\\n\\ncited here by both the district court and Mr. Kenney and is directly on-point.\\n\\nGreenwood, 2017 WL 3391671. The district court in Greenwood relied on a legal\\n\\nadvice memo written for the National Labor Relations Board to conclude that any\\n\\npossible violations of the CSA are not relevant to whether the FLSA’s protections\\n\\napply to workers in the marijuana industry. Id. at *2–3. Considering arguments\\n\\nnearly identical to those made by Helix here, the court in Greenwood denied\\n\\ndefendant’s motion to dismiss. See, e.g., id. at *3 (“I conclude that any possible\\n\\nviolations of the Controlled Substances Act are not relevant to whether the FLSA’s\\n\\nprotections apply to Plaintiff. . . . There is no inherent conflict between the FLSA’s\\n\\nrequirements and the Controlled Substances Act's prohibition of marijuana.”).\\n\\n Like the district court in Greenwood, we are not drawing any conclusions\\n\\nabout the merits of Mr. Kenney’s FLSA claims. We hold only that Mr. Kenney and\\n\\nsimilarly situated individuals are not categorically excluded from FLSA protections.\\n\\nAccordingly, we AFFIRM the district court’s denial of Helix’s motion to dismiss.\\n\\n\\n\\n\\n 12\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4440149/\", \"author_raw\": \"SEYMOUR, Circuit Judge.\"}]}"},"judge1":{"kind":"string","value":"HARTZ"},"judge2":{"kind":"string","value":"SEYMOUR"},"judge3":{"kind":"string","value":"EID"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"HARTZ\": \", Circuit\", \"SEYMOUR\": \", Circuit\", \"EID\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4662896/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Kenney v. Helix TCS\nCourt: U.S. Court of Appeals for the Tenth Circuit\nDate decided: 2019-09-20\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nFILED\n United States Court of Appeals\n PUBLISH Tenth Circuit\n\n UNITED STATES COURT OF APPEALS September 20, 2019\n\n Elisabeth A. Shumaker\n FOR THE TENTH CIRCUIT Clerk of Court\n _________________________________\n\n ROBERT KENNEY, individually and on\n behalf of all others similarly situated,\n\n Plaintiff - Appellee,\n\n v. No. 18-1105\n\n HELIX TCS, INC.,\n\n Defendant - Appellant.\n _________________________________\n\n Appeal from the United States District Court\n for the District of Colorado\n (D.C. No. 1:17-CV-01755-CMA-KMT)\n _________________________________\n\nJordan D. Factor, (Jeremy T. Jonsen and Carissa V. Sears, with him on the briefs) Allen\nVellone Wolf Helfrich & Factor, P.C., Denver, Colorado, for Defendant-Appellant.\n\nLyndsay R. Itkin, (Michael Andrew Josephson, with her on the brief) Josephson Dunlap\nLaw Firm, Houston, Texas for Plaintiff-Appellee.\n _________________________________\n\nBefore HARTZ, SEYMOUR, and EID, Circuit Judges.\n _________________________________\n\nSEYMOUR, Circuit Judge.\n _________________________________\n\n Plaintiff Robert Kenney is a former employee of Defendant Helix TCS, Inc.\n\n(“Helix”), which provides security services for businesses in Colorado’s state-\n\nsanctioned marijuana industry. Mr. Kenney filed this lawsuit against Helix under the\n\fFair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201–219, alleging that Helix\n\nmisclassified him and similarly situated workers as exempt from the FLSA’s\n\novertime obligations. Helix moved to dismiss Mr. Kenney’s claim based on the\n\nControlled Substance Act (“CSA”), 21 U.S.C. §801, et seq, arguing that Mr.\n\nKenney’s employment activities are in violation of the CSA and are thus not entitled\n\nto FLSA protections. The district court denied Helix’s motion to dismiss. We\n\naffirm.\n\n\n\n I.\n\n Between approximately February 2016 and April 2017, Mr. Kenney worked as\n\na security guard for Helix. Mr. Kenney alleges that he and other similarly situated\n\nsecurity guards regularly worked more than forty hours per week. Nevertheless,\n\nHelix classified these workers as exempt employees under the FLSA and paid them a\n\nsalary instead of overtime. Mr. Kenney initiated this action against Helix under the\n\ncollective action provisions of the FLSA, see 29 U.S.C. § 216(b), contending that\n\nHelix misclassified the security guards as exempt employees even though they\n\nfrequently performed non-exempt job duties. He claims Helix is in violation of 29\n\nU.S.C. § 207(a) by willfully failing to pay overtime.\n\n Helix provides security, inventory control, and compliance services to the\n\nmarijuana industry in Colorado. Kenney v. Helix TCS, Inc., 284 F. Supp. 3d 1186,\n\n1188 (D. Colo. 2018). Mr. Kenney’s job duties at Helix included monitoring security\n\n\n\n 2\n\fcameras, patrolling assigned locations, investigating and documenting all facility-\n\nrelated incidents, and enforcing client, local, state, and federal policies and\n\nregulations. Id. Helix asserts that the FLSA does not apply to workers such as Mr.\n\nKenney because Colorado’s recreational marijuana industry is in violation of the\n\nControlled Substances Act. It therefore moved to dismiss Mr. Kenney’s FLSA claim\n\nfor want of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure\n\nor, alternatively, under Rule 12(b)(6) for failure to state a claim.\n\n The district court denied Helix’s motion to dismiss and then certified Helix’s\n\ninterlocutory appeal of its order. Exercising jurisdiction pursuant to 28 U.S.C.\n\n§ 1292(b), we affirm.\n\n\n\n II.\n\n Both parties agree that we review de novo the district court’s denial of Helix’s\n\nmotions to dismiss. A Rule 12(b)(1) motion to dismiss only requires the court to\n\ndetermine whether it has authority to adjudicate the matter. Helix argued below that\n\nthe district court lacked subject matter jurisdiction because there is no federal interest\n\nat stake. The district court correctly rejected this argument, identifying it as a\n\nchallenge to the legal sufficiency of Mr. Kenney’s claims rather than the jurisdiction\n\nof the federal courts. Kenney, 284 F. Supp. 3d at 1189 (citing Arbaugh v. Y & H\n\nCorp., 546 U.S. 500, 516 (2006) (holding statute’s definitional requirement of who\n\nqualifies as employer “is an element of a plaintiff’s claim for relief, not a\n\n\n\n 3\n\fjurisdictional issue”)). Helix only cursorily mentioned this argument in its opening\n\nbrief and dropped the issue entirely in its reply brief.\n\n A Rule 12(b)(6) motion to dismiss requires the court to evaluate the\n\nsufficiency of the plaintiff’s allegations. “At this stage in the litigation, we accept as\n\ntrue the well pleaded factual allegations and then determine if the plaintiff has\n\nprovided enough facts to state a claim to relief that is plausible on its face.” Hogan\n\nv. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (internal citation and quotation\n\nmarks omitted). “A claim has facial plausibility when the plaintiff pleads factual\n\ncontent that allows the court to draw the reasonable inference that the defendant is\n\nliable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).\n\n\n\n III.\n\n Whether § 207(a) of the FLSA applies to Mr. Kenney is an issue of statutory\n\ninterpretation, which always begins with the plain language of the statute. See, e.g.,\n\nArtis v. D.C., 138 S. Ct. 594, 603 (2018). To state a claim for a violation of this\n\nFLSA provision, a plaintiff merely must show that he is an employee who (a) worked\n\nmore than forty hours per week, and (b) is either “engaged in commerce or in the\n\nproduction of goods for commerce” or “employed in an enterprise engaged in\n\ncommerce or in the production of goods for commerce.” 29 U.S.C. § 207(a)(1). The\n\nstatute then enumerates certain categories of employees that are explicitly exempted\n\nfrom FLSA protections, regardless of whether they meet these requirements. The\n\n\n\n 4\n\femployer bears the burden to prove that an exemption under the FLSA applies to the\n\nplaintiff. See, e.g., Lederman v. Frontier Fire Protection Inc., 685 F. 3d 1151, 1157–\n\n58 (10th Cir. 2012). Our case law confirms that FLSA protections apply unless an\n\nestablishment fits “plainly and unmistakably within the terms and the spirit of the\n\nexemption invoked.” Schoenhals v. Cockrum, 647 F.2d 1080, 1081 (10th Cir. 1981).\n\n Helix does not dispute the fact that Mr. Kenney is an employee who worked\n\nmore than forty hours per week, and Mr. Kenney has clearly alleged that he is\n\ncovered by the plain language of the FLSA.1 Nor does Helix argue that Mr. Kenney\n\nfits into one of the FLSA’s enumerated categories of excluded employees. As the\n\nSupreme Court has long emphasized, where the statute’s language is plain the sole\n\nfunction of the courts is to enforce it according to its terms. Lucas v. Jerusalem\n\nCafé, LLC., 721 F.3d 927, 934 (8th Cir. 2013) (citing United States v. Ron Pair\n\nEnters., Inc., 489 U.S. 235, 241 (1989)). So Helix’s challenge “must fail unless [it]\n\ncan point to a different statutory basis for limiting ‘the broadest definition that has\n\never been included in any one act.’” Lucas, 721 F.3d at 934 (quoting 81 Cong. Rec.\n\n\n\n\n 1\n Helix does contest the allegation that it engages in commerce within the\nmeaning of the FLSA, see generally 29 U.S.C. § 203(b) (“‘Commerce’ means trade,\ncommerce, transportation, transmission, or communication among the several States\nor between any State and any place outside thereof.”), arguing for the first time on\nappeal that Colorado’s marijuana industry is only authorized within the state’s\nborders. But Helix has waived this argument by raising it for the first time on appeal.\nSee Hormel v. Helvering, 312 U.S. 552, 556 (1941); Tele–Communications, Inc. v.\nCommissioner of Internal Revenue, 12 F.3d 1005, 1007 (10th Cir. 1993).\n\n\n 5\n\f7656–57 (1937) (statement of Sen. Black)). 2\n\n Although Helix sidesteps the disfavored phrase “implied repeal” and claims to\n\nmerely be reading the statutes in harmony with each other, in effect it proposes that\n\nwe interpret the CSA as implicitly repealing the FLSA’s overtime mandate for\n\nemployers in the marijuana industry. See Epic Systems Corp v. Lewis, 138 S. Ct.\n\n1612, 1623–24 (2018). Construing this as Helix’s true argument is particularly\n\naccurate in light of marijuana’s history as a legal industry. See, e.g., Marihuana Tax\n\nAct, 50 Stat. 551 (repealed 1970) (regulating all persons dealing with marijuana,\n\nincluding companies and corporations); see also Raich, 545 U.S. at 11 (explaining\n\nhistory of marijuana regulation). Prior to enactment of the CSA in 1970, the FLSA\n\nunquestionably covered these workers. The Supreme Court recently reiterated that an\n\nimplied repeal argument “faces a stout uphill climb.” Epic Systems, 138 S. Ct. at\n\n1624. We approach these arguments with a “strong presumption that repeals by\n\nimplication are disfavored and that Congress will specifically address preexisting law\n\nwhen it wishes to suspend its normal operations in a later statute.” Id. (citation,\n\nquotation marks, and brackets omitted). And, as Helix itself declares, Congress is\n\n\n\n 2\n Helix develops several lines of argument that do not bear on the resolution of\nthis appeal. Helix frames the issue as one of preemption by setting state-sanctioned\nmarijuana use in opposition to the CSA, lengthily addresses federal enforcement of\nthe CSA with respect to marijuana offenses, and examines state court treatment of\nemployment protections in the context of marijuana use. None of these arguments\npertain to the present case, which concerns not the federal legality of marijuana but\nthe interaction between two federal laws and the resultant application of the FLSA to\nthe plaintiffs here.\n\n 6\n\fpresumed to know the law when legislating. Aplt. Br. at 19; see also In re Harline,\n\n950 F.2d 669, 675 (10th Cir. 1991).\n\n Helix argues that inclusion of Mr. Kenney under the FLSA is an overly\n\ntechnical reading of the statute, and that legislative intent with respect to this issue\n\nmust be inferred from the distinctive purposes of the FLSA and the CSA as the two\n\nstatutes in question. Helix contrasts the purpose of the FLSA, which it identifies as\n\nensuring “the free flow of goods in commerce” and “the orderly and fair marketing of\n\ngoods in commerce,” Aplt. Br. at 20 (citing 29 U.S.C. § 202), from the purpose of the\n\nlater-enacted CSA, which it describes as “eliminat[ing] commercial transactions of\n\nmarijuana in the interstate market in their entirety.” Id. (citing Raich, 545 U.S. at 20)\n\n(brackets omitted). Helix then asserts that Mr. Kenney’s interpretation of the FLSA\n\nwould “create a clear repugnancy” between it and the CSA and impermissibly render\n\nthe two laws mutually inconsistent. Aplt. Br. at 21. “Extending overtime benefits in\n\nthis case would require the Court to find that Congress intended to both forbid (under\n\nthe CSA) and reward (under the FLSA) the same conduct: drug trafficking.” Id.\n\n As outlined below, however, “case law is clear that employers are not excused\n\nfrom complying with federal laws” because of their other federal violations. Kenney,\n\n284 F. Supp. 3d at 1190; accord United States v. Sullivan, 274 U.S. 259 (1927)\n\n(holding there was no reason “why the fact that a business is unlawful should exempt\n\nit from paying the taxes that if lawful it would have to pay”); Lucas, 721 F.3d at 934\n\n(“The employers’ argument to the contrary rests on a legal theory as flawed today as\n\n\n\n 7\n\fit was in 1931 when jurors convicted Al Capone of failing to pay taxes on illicit\n\nincome.”). Contrary to Helix’s claims, recognizing Mr. Kenney as covered by the\n\nFLSA is in line with both the plain reading and the overall purposes of that statute,\n\nand doing so does not require disavowal of the CSA.\n\n As we recognized in Baker v. Flint Engineering & Const. Co., 137 F.3d 1436,\n\n1440 (10th Cir. 1998), the Supreme Court has emphasized the “striking breadth” of\n\nthe FLSA’s definition of employee, which is purposefully expansive to maximize the\n\nfull reach of the Act, see United States v. Rosenwasser, 323 U.S. 360, 363 (1945).\n\nCongress has shown that it knows how to limit this broad definition of employee\n\nwhen it intends to do so, and it did not do so here. See 29 U.S.C. § 203(e); see also\n\nLucas, 721 F.3d at 934 (applying FLSA to unauthorized immigrants). Congress has\n\nactually amended the FLSA many times since the enactment of the CSA without\n\nexcluding employees working in the marijuana industry, despite specifically\n\nexempting other categories of workers. See 29 U.S.C. § 213. The Supreme Court\n\nhas held that the FLSA’s “specificity in stating exemptions strengthens the\n\nimplication that employees not thus exempted . . . remain within the Act.” Powell v.\n\nUnited States Cartridge Co., 339 U.S. 497, 516–17 (1950); accord Citicorp Indus.\n\nCredit, Inc. v. Brock, 483 U.S. 27, 35 (1987) (“[W]here the FLSA provides\n\nexemptions ‘in detail and with particularity,’ we have found this to preclude\n\n‘enlargement by implication.’”) Deherrera v. Decker Truck Line, Inc., 820 F.3d\n\n1147, 1154 (10th Cir. 2016) (“Because FLSA exemptions are narrowly construed\n\n\n\n 8\n\fagainst . . . employers, in considering an FLSA exemption, a court must find that the\n\nclaimed exemption falls plainly and unmistakably within the terms of the statute.”)\n\n(internal citations and quotation marks omitted).\n\n Moreover, the purposes of the FLSA do not conflict with the CSA quite as\n\ndirectly as Helix implies. Helix cherry-picks among the enumerated purposes of the\n\nFLSA, citing only those most favorable to its arguments. But the FLSA was also\n\nenacted to promote “the health, efficiency, and general well-being of workers” and to\n\nprevent unfair competition. 29 U.S.C. § 202; see also Brock, 483 U.S. at 36–37\n\n(clarifying that FLSA contains more than one goal, including “Congress’ desire to\n\neliminate the competitive advantage enjoyed by goods produced under substandard\n\nconditions”). The FLSA is a remedial scheme for the benefit of all workers.\n\nAnderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946); see also Lamon v.\n\nCity of Shawnee, Kan., 972 F.2d 1145, 1149 (10th Cir. 1992). Applying the FLSA to\n\nworkers such as Mr. Kenney does not conflict with these enumerated FLSA purposes.\n\n Helix counters that “Congress did not seek to level the same playing field that\n\nit tried to demolish.” Aplt. Reply Br. at 5. But adhering to the plain language of the\n\nstatute here does not level the playing field within the illicit marijuana market but\n\nrather beyond it, preventing these unlawful businesses from procuring an unfair\n\nadvantage over all other legitimate employers who are required to comply with\n\nfederal overtime laws. Indeed, applying FLSA protections to workers such as Mr.\n\nKenney will not grant these individuals any surplus benefit that they cannot easily\n\n\n\n 9\n\fobtain elsewhere, but the reverse would excuse Helix from FLSA costs and\n\nobligations and thereby allow it to reap additional benefit from its CSA violations.\n\nDenying FLSA protection to workers in the marijuana industry would consequently\n\nencourage employers to engage in illegal markets where they are subject to fewer\n\nrequirements. But together the FLSA and CSA discourage businesses from\n\nparticipating in the marijuana industry by alternatively subjecting them to federal\n\nlabor obligations and imposing criminal sanctions.3 Accordingly, accepting the plain\n\nlanguage interpretation that Mr. Kenney and similarly situated employees are covered\n\nby the FLSA promotes the legislature’s intent in enacting the statute. See Brock, 483\n\n\n\n 3\n Helix’s opening brief cites a variety of jurisprudential arenas as supporting\nthe contention that federal courts “consistently decline to reward participation in the\nmarijuana industry.” Aplt. Br. at 10. The only context Helix continued to argue\nthrough oral argument is the Trademark Act. Beyond noting that Mr. Kinney\nconvincingly distinguishes each of the contexts and relevant authorities that Helix\ncites, we will similarly restrict our analysis. A trademark qualifies for registration\nand its associated benefits if the trademark owner has “used [the mark] in commerce”\nor has a bona fide intent to do so, 15 U.S.C. § 105, and courts have long held that the\ncommerce must be “lawful” for it to satisfy the “use in commerce” requirement. See,\ne.g., United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1225 (10th\nCir. 2000). Helix urges us to adopt a similar interpretation for the FLSA. Although\nthe Trademark Act and FLSA both regulate interstate commerce, however, they\nfunction in fundamentally different ways. The Trademark Act confers a benefit on\nowners who register their marks, securing a registrant’s right to benefit from a good\nreputation and thus protecting him from unfair competition. See Matal v. Tam, 137\nS. Ct. 1744, 1752–53 (2017). The FLSA, in contrast, prevents unfair competition,\nnot by conferring a benefit on certain actors but by imposing obligations across the\nlabor market. Reading “lawful” into the threshold commerce requirement here would\nnot further the statute’s purposes by denying illegal businesses a benefit, as in the\ntrademark context, but would thwart the FLSA’s goals by exempting illicit markets\nfrom costs imposed on lawful employers.\n\n\n 10\n\fU.S. at 35–36 (“Petitioner urges us to look beyond the plain language of the statute . .\n\n. . However, we conclude that the legislative intent fully supports the result achieved\n\nby application of the plain language.”).\n\n The district court correctly reasoned and case law has repeatedly confirmed\n\nthat employers are not excused from complying with federal laws just because their\n\nbusiness practices are federally prohibited. See, e.g., Sullivan, 274 U.S. at 263; see\n\nalso Greenwood v. Green Leaf Lab LLC, 2017 WL 3391671 at *3 (D. Or. July 13,\n\n2017), adopted by district court, 2017 WL 3391671 (D. Or. Aug. 7, 2017) (“[J]ust\n\nbecause an Employer is violating one federal law, does not give it license to violate\n\nanother.”) (internal citation omitted). This has been true with respect to the FLSA in\n\nmultiple contexts, strengthening the conclusion that it remains true in this novel\n\ncontext of the marijuana industry. See Donovan v. Burgett Greenhouses, Inc., 759\n\nF.2d 1483, 1485 (10th Cir. 1985); Bustamente, 2018 WL 2349507 at *1 (workers in\n\nan illegal gambling operation).4 Persuasive case law endorses the concept that the\n\nFLSA is focused on regulating the activity of businesses, in part on behalf of the\n\nindividual workers’ wellbeing, rather than regulating the legality of individual\n\nworkers’ activities. See, e.g., Haro v. City of Los Angeles, 745 F.3d 1249, 1256 (9th\n\n\n 4\n Helix attempts to distinguish these cases on the basis that those employees\nwere engaging in entirely lawful commercial activities, whereas the employees here\nare engaged in activities that violate the CSA. This argument is not convincing. The\nillegal nature of the gambling activity in Bustamente was directly acknowledged by\nthe court in a footnote, and the innocuous nature of the work being performed by\nundocumented immigrants in the other cases discussed does not offset their active\nviolations of federal law in obtaining work.\n\n 11\n\fCir. 2014). (“The FLSA is to be construed liberally in favor of employees;\n\nexemptions are narrowly construed against employers.”).\n\n Notably, Helix failed entirely to address the Oregon district court case that was\n\ncited here by both the district court and Mr. Kenney and is directly on-point.\n\nGreenwood, 2017 WL 3391671. The district court in Greenwood relied on a legal\n\nadvice memo written for the National Labor Relations Board to conclude that any\n\npossible violations of the CSA are not relevant to whether the FLSA’s protections\n\napply to workers in the marijuana industry. Id. at *2–3. Considering arguments\n\nnearly identical to those made by Helix here, the court in Greenwood denied\n\ndefendant’s motion to dismiss. See, e.g., id. at *3 (“I conclude that any possible\n\nviolations of the Controlled Substances Act are not relevant to whether the FLSA’s\n\nprotections apply to Plaintiff. . . . There is no inherent conflict between the FLSA’s\n\nrequirements and the Controlled Substances Act's prohibition of marijuana.”).\n\n Like the district court in Greenwood, we are not drawing any conclusions\n\nabout the merits of Mr. Kenney’s FLSA claims. We hold only that Mr. Kenney and\n\nsimilarly situated individuals are not categorically excluded from FLSA protections.\n\nAccordingly, we AFFIRM the district court’s denial of Helix’s motion to dismiss.\n\n\n\n\n 12\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Kenney v. Helix TCS\\nCourt: U.S. Court of Appeals for the Tenth Circuit\\nDate decided: 2019-09-20\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nFILED\\n United States Court of Appeals\\n PUBLISH Tenth Circuit\\n\\n UNITED STATES COURT OF APPEALS September 20, 2019\\n\\n Elisabeth A. Shumaker\\n FOR THE TENTH CIRCUIT Clerk of Court\\n _________________________________\\n\\n ROBERT KENNEY, individually and on\\n behalf of all others similarly situated,\\n\\n Plaintiff - Appellee,\\n\\n v. No. 18-1105\\n\\n HELIX TCS, INC.,\\n\\n Defendant - Appellant.\\n _________________________________\\n\\n Appeal from the United States District Court\\n for the District of Colorado\\n (D.C. No. 1:17-CV-01755-CMA-KMT)\\n _________________________________\\n\\nJordan D. Factor, (Jeremy T. Jonsen and Carissa V. Sears, with him on the briefs) Allen\\nVellone Wolf Helfrich & Factor, P.C., Denver, Colorado, for Defendant-Appellant.\\n\\nLyndsay R. Itkin, (Michael Andrew Josephson, with her on the brief) Josephson Dunlap\\nLaw Firm, Houston, Texas for Plaintiff-Appellee.\\n _________________________________\\n\\nBefore HARTZ, SEYMOUR, and EID, Circuit Judges.\\n _________________________________\\n\\nSEYMOUR, Circuit Judge.\\n _________________________________\\n\\n Plaintiff Robert Kenney is a former employee of Defendant Helix TCS, Inc.\\n\\n(“Helix”), which provides security services for businesses in Colorado’s state-\\n\\nsanctioned marijuana industry. Mr. Kenney filed this lawsuit against Helix under the\\n\\fFair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201–219, alleging that Helix\\n\\nmisclassified him and similarly situated workers as exempt from the FLSA’s\\n\\novertime obligations. Helix moved to dismiss Mr. Kenney’s claim based on the\\n\\nControlled Substance Act (“CSA”), 21 U.S.C. §801, et seq, arguing that Mr.\\n\\nKenney’s employment activities are in violation of the CSA and are thus not entitled\\n\\nto FLSA protections. The district court denied Helix’s motion to dismiss. We\\n\\naffirm.\\n\\n\\n\\n I.\\n\\n Between approximately February 2016 and April 2017, Mr. Kenney worked as\\n\\na security guard for Helix. Mr. Kenney alleges that he and other similarly situated\\n\\nsecurity guards regularly worked more than forty hours per week. Nevertheless,\\n\\nHelix classified these workers as exempt employees under the FLSA and paid them a\\n\\nsalary instead of overtime. Mr. Kenney initiated this action against Helix under the\\n\\ncollective action provisions of the FLSA, see 29 U.S.C. § 216(b), contending that\\n\\nHelix misclassified the security guards as exempt employees even though they\\n\\nfrequently performed non-exempt job duties. He claims Helix is in violation of 29\\n\\nU.S.C. § 207(a) by willfully failing to pay overtime.\\n\\n Helix provides security, inventory control, and compliance services to the\\n\\nmarijuana industry in Colorado. Kenney v. Helix TCS, Inc., 284 F. Supp. 3d 1186,\\n\\n1188 (D. Colo. 2018). Mr. Kenney’s job duties at Helix included monitoring security\\n\\n\\n\\n 2\\n\\fcameras, patrolling assigned locations, investigating and documenting all facility-\\n\\nrelated incidents, and enforcing client, local, state, and federal policies and\\n\\nregulations. Id. Helix asserts that the FLSA does not apply to workers such as Mr.\\n\\nKenney because Colorado’s recreational marijuana industry is in violation of the\\n\\nControlled Substances Act. It therefore moved to dismiss Mr. Kenney’s FLSA claim\\n\\nfor want of jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure\\n\\nor, alternatively, under Rule 12(b)(6) for failure to state a claim.\\n\\n The district court denied Helix’s motion to dismiss and then certified Helix’s\\n\\ninterlocutory appeal of its order. Exercising jurisdiction pursuant to 28 U.S.C.\\n\\n§ 1292(b), we affirm.\\n\\n\\n\\n II.\\n\\n Both parties agree that we review de novo the district court’s denial of Helix’s\\n\\nmotions to dismiss. A Rule 12(b)(1) motion to dismiss only requires the court to\\n\\ndetermine whether it has authority to adjudicate the matter. Helix argued below that\\n\\nthe district court lacked subject matter jurisdiction because there is no federal interest\\n\\nat stake. The district court correctly rejected this argument, identifying it as a\\n\\nchallenge to the legal sufficiency of Mr. Kenney’s claims rather than the jurisdiction\\n\\nof the federal courts. Kenney, 284 F. Supp. 3d at 1189 (citing Arbaugh v. Y & H\\n\\nCorp., 546 U.S. 500, 516 (2006) (holding statute’s definitional requirement of who\\n\\nqualifies as employer “is an element of a plaintiff’s claim for relief, not a\\n\\n\\n\\n 3\\n\\fjurisdictional issue”)). Helix only cursorily mentioned this argument in its opening\\n\\nbrief and dropped the issue entirely in its reply brief.\\n\\n A Rule 12(b)(6) motion to dismiss requires the court to evaluate the\\n\\nsufficiency of the plaintiff’s allegations. “At this stage in the litigation, we accept as\\n\\ntrue the well pleaded factual allegations and then determine if the plaintiff has\\n\\nprovided enough facts to state a claim to relief that is plausible on its face.” Hogan\\n\\nv. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (internal citation and quotation\\n\\nmarks omitted). “A claim has facial plausibility when the plaintiff pleads factual\\n\\ncontent that allows the court to draw the reasonable inference that the defendant is\\n\\nliable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).\\n\\n\\n\\n III.\\n\\n Whether § 207(a) of the FLSA applies to Mr. Kenney is an issue of statutory\\n\\ninterpretation, which always begins with the plain language of the statute. See, e.g.,\\n\\nArtis v. D.C., 138 S. Ct. 594, 603 (2018). To state a claim for a violation of this\\n\\nFLSA provision, a plaintiff merely must show that he is an employee who (a) worked\\n\\nmore than forty hours per week, and (b) is either “engaged in commerce or in the\\n\\nproduction of goods for commerce” or “employed in an enterprise engaged in\\n\\ncommerce or in the production of goods for commerce.” 29 U.S.C. § 207(a)(1). The\\n\\nstatute then enumerates certain categories of employees that are explicitly exempted\\n\\nfrom FLSA protections, regardless of whether they meet these requirements. The\\n\\n\\n\\n 4\\n\\femployer bears the burden to prove that an exemption under the FLSA applies to the\\n\\nplaintiff. See, e.g., Lederman v. Frontier Fire Protection Inc., 685 F. 3d 1151, 1157–\\n\\n58 (10th Cir. 2012). Our case law confirms that FLSA protections apply unless an\\n\\nestablishment fits “plainly and unmistakably within the terms and the spirit of the\\n\\nexemption invoked.” Schoenhals v. Cockrum, 647 F.2d 1080, 1081 (10th Cir. 1981).\\n\\n Helix does not dispute the fact that Mr. Kenney is an employee who worked\\n\\nmore than forty hours per week, and Mr. Kenney has clearly alleged that he is\\n\\ncovered by the plain language of the FLSA.1 Nor does Helix argue that Mr. Kenney\\n\\nfits into one of the FLSA’s enumerated categories of excluded employees. As the\\n\\nSupreme Court has long emphasized, where the statute’s language is plain the sole\\n\\nfunction of the courts is to enforce it according to its terms. Lucas v. Jerusalem\\n\\nCafé, LLC., 721 F.3d 927, 934 (8th Cir. 2013) (citing United States v. Ron Pair\\n\\nEnters., Inc., 489 U.S. 235, 241 (1989)). So Helix’s challenge “must fail unless [it]\\n\\ncan point to a different statutory basis for limiting ‘the broadest definition that has\\n\\never been included in any one act.’” Lucas, 721 F.3d at 934 (quoting 81 Cong. Rec.\\n\\n\\n\\n\\n 1\\n Helix does contest the allegation that it engages in commerce within the\\nmeaning of the FLSA, see generally 29 U.S.C. § 203(b) (“‘Commerce’ means trade,\\ncommerce, transportation, transmission, or communication among the several States\\nor between any State and any place outside thereof.”), arguing for the first time on\\nappeal that Colorado’s marijuana industry is only authorized within the state’s\\nborders. But Helix has waived this argument by raising it for the first time on appeal.\\nSee Hormel v. Helvering, 312 U.S. 552, 556 (1941); Tele–Communications, Inc. v.\\nCommissioner of Internal Revenue, 12 F.3d 1005, 1007 (10th Cir. 1993).\\n\\n\\n 5\\n\\f7656–57 (1937) (statement of Sen. Black)). 2\\n\\n Although Helix sidesteps the disfavored phrase “implied repeal” and claims to\\n\\nmerely be reading the statutes in harmony with each other, in effect it proposes that\\n\\nwe interpret the CSA as implicitly repealing the FLSA’s overtime mandate for\\n\\nemployers in the marijuana industry. See Epic Systems Corp v. Lewis, 138 S. Ct.\\n\\n1612, 1623–24 (2018). Construing this as Helix’s true argument is particularly\\n\\naccurate in light of marijuana’s history as a legal industry. See, e.g., Marihuana Tax\\n\\nAct, 50 Stat. 551 (repealed 1970) (regulating all persons dealing with marijuana,\\n\\nincluding companies and corporations); see also Raich, 545 U.S. at 11 (explaining\\n\\nhistory of marijuana regulation). Prior to enactment of the CSA in 1970, the FLSA\\n\\nunquestionably covered these workers. The Supreme Court recently reiterated that an\\n\\nimplied repeal argument “faces a stout uphill climb.” Epic Systems, 138 S. Ct. at\\n\\n1624. We approach these arguments with a “strong presumption that repeals by\\n\\nimplication are disfavored and that Congress will specifically address preexisting law\\n\\nwhen it wishes to suspend its normal operations in a later statute.” Id. (citation,\\n\\nquotation marks, and brackets omitted). And, as Helix itself declares, Congress is\\n\\n\\n\\n 2\\n Helix develops several lines of argument that do not bear on the resolution of\\nthis appeal. Helix frames the issue as one of preemption by setting state-sanctioned\\nmarijuana use in opposition to the CSA, lengthily addresses federal enforcement of\\nthe CSA with respect to marijuana offenses, and examines state court treatment of\\nemployment protections in the context of marijuana use. None of these arguments\\npertain to the present case, which concerns not the federal legality of marijuana but\\nthe interaction between two federal laws and the resultant application of the FLSA to\\nthe plaintiffs here.\\n\\n 6\\n\\fpresumed to know the law when legislating. Aplt. Br. at 19; see also In re Harline,\\n\\n950 F.2d 669, 675 (10th Cir. 1991).\\n\\n Helix argues that inclusion of Mr. Kenney under the FLSA is an overly\\n\\ntechnical reading of the statute, and that legislative intent with respect to this issue\\n\\nmust be inferred from the distinctive purposes of the FLSA and the CSA as the two\\n\\nstatutes in question. Helix contrasts the purpose of the FLSA, which it identifies as\\n\\nensuring “the free flow of goods in commerce” and “the orderly and fair marketing of\\n\\ngoods in commerce,” Aplt. Br. at 20 (citing 29 U.S.C. § 202), from the purpose of the\\n\\nlater-enacted CSA, which it describes as “eliminat[ing] commercial transactions of\\n\\nmarijuana in the interstate market in their entirety.” Id. (citing Raich, 545 U.S. at 20)\\n\\n(brackets omitted). Helix then asserts that Mr. Kenney’s interpretation of the FLSA\\n\\nwould “create a clear repugnancy” between it and the CSA and impermissibly render\\n\\nthe two laws mutually inconsistent. Aplt. Br. at 21. “Extending overtime benefits in\\n\\nthis case would require the Court to find that Congress intended to both forbid (under\\n\\nthe CSA) and reward (under the FLSA) the same conduct: drug trafficking.” Id.\\n\\n As outlined below, however, “case law is clear that employers are not excused\\n\\nfrom complying with federal laws” because of their other federal violations. Kenney,\\n\\n284 F. Supp. 3d at 1190; accord United States v. Sullivan, 274 U.S. 259 (1927)\\n\\n(holding there was no reason “why the fact that a business is unlawful should exempt\\n\\nit from paying the taxes that if lawful it would have to pay”); Lucas, 721 F.3d at 934\\n\\n(“The employers’ argument to the contrary rests on a legal theory as flawed today as\\n\\n\\n\\n 7\\n\\fit was in 1931 when jurors convicted Al Capone of failing to pay taxes on illicit\\n\\nincome.”). Contrary to Helix’s claims, recognizing Mr. Kenney as covered by the\\n\\nFLSA is in line with both the plain reading and the overall purposes of that statute,\\n\\nand doing so does not require disavowal of the CSA.\\n\\n As we recognized in Baker v. Flint Engineering & Const. Co., 137 F.3d 1436,\\n\\n1440 (10th Cir. 1998), the Supreme Court has emphasized the “striking breadth” of\\n\\nthe FLSA’s definition of employee, which is purposefully expansive to maximize the\\n\\nfull reach of the Act, see United States v. Rosenwasser, 323 U.S. 360, 363 (1945).\\n\\nCongress has shown that it knows how to limit this broad definition of employee\\n\\nwhen it intends to do so, and it did not do so here. See 29 U.S.C. § 203(e); see also\\n\\nLucas, 721 F.3d at 934 (applying FLSA to unauthorized immigrants). Congress has\\n\\nactually amended the FLSA many times since the enactment of the CSA without\\n\\nexcluding employees working in the marijuana industry, despite specifically\\n\\nexempting other categories of workers. See 29 U.S.C. § 213. The Supreme Court\\n\\nhas held that the FLSA’s “specificity in stating exemptions strengthens the\\n\\nimplication that employees not thus exempted . . . remain within the Act.” Powell v.\\n\\nUnited States Cartridge Co., 339 U.S. 497, 516–17 (1950); accord Citicorp Indus.\\n\\nCredit, Inc. v. Brock, 483 U.S. 27, 35 (1987) (“[W]here the FLSA provides\\n\\nexemptions ‘in detail and with particularity,’ we have found this to preclude\\n\\n‘enlargement by implication.’”) Deherrera v. Decker Truck Line, Inc., 820 F.3d\\n\\n1147, 1154 (10th Cir. 2016) (“Because FLSA exemptions are narrowly construed\\n\\n\\n\\n 8\\n\\fagainst . . . employers, in considering an FLSA exemption, a court must find that the\\n\\nclaimed exemption falls plainly and unmistakably within the terms of the statute.”)\\n\\n(internal citations and quotation marks omitted).\\n\\n Moreover, the purposes of the FLSA do not conflict with the CSA quite as\\n\\ndirectly as Helix implies. Helix cherry-picks among the enumerated purposes of the\\n\\nFLSA, citing only those most favorable to its arguments. But the FLSA was also\\n\\nenacted to promote “the health, efficiency, and general well-being of workers” and to\\n\\nprevent unfair competition. 29 U.S.C. § 202; see also Brock, 483 U.S. at 36–37\\n\\n(clarifying that FLSA contains more than one goal, including “Congress’ desire to\\n\\neliminate the competitive advantage enjoyed by goods produced under substandard\\n\\nconditions”). The FLSA is a remedial scheme for the benefit of all workers.\\n\\nAnderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946); see also Lamon v.\\n\\nCity of Shawnee, Kan., 972 F.2d 1145, 1149 (10th Cir. 1992). Applying the FLSA to\\n\\nworkers such as Mr. Kenney does not conflict with these enumerated FLSA purposes.\\n\\n Helix counters that “Congress did not seek to level the same playing field that\\n\\nit tried to demolish.” Aplt. Reply Br. at 5. But adhering to the plain language of the\\n\\nstatute here does not level the playing field within the illicit marijuana market but\\n\\nrather beyond it, preventing these unlawful businesses from procuring an unfair\\n\\nadvantage over all other legitimate employers who are required to comply with\\n\\nfederal overtime laws. Indeed, applying FLSA protections to workers such as Mr.\\n\\nKenney will not grant these individuals any surplus benefit that they cannot easily\\n\\n\\n\\n 9\\n\\fobtain elsewhere, but the reverse would excuse Helix from FLSA costs and\\n\\nobligations and thereby allow it to reap additional benefit from its CSA violations.\\n\\nDenying FLSA protection to workers in the marijuana industry would consequently\\n\\nencourage employers to engage in illegal markets where they are subject to fewer\\n\\nrequirements. But together the FLSA and CSA discourage businesses from\\n\\nparticipating in the marijuana industry by alternatively subjecting them to federal\\n\\nlabor obligations and imposing criminal sanctions.3 Accordingly, accepting the plain\\n\\nlanguage interpretation that Mr. Kenney and similarly situated employees are covered\\n\\nby the FLSA promotes the legislature’s intent in enacting the statute. See Brock, 483\\n\\n\\n\\n 3\\n Helix’s opening brief cites a variety of jurisprudential arenas as supporting\\nthe contention that federal courts “consistently decline to reward participation in the\\nmarijuana industry.” Aplt. Br. at 10. The only context Helix continued to argue\\nthrough oral argument is the Trademark Act. Beyond noting that Mr. Kinney\\nconvincingly distinguishes each of the contexts and relevant authorities that Helix\\ncites, we will similarly restrict our analysis. A trademark qualifies for registration\\nand its associated benefits if the trademark owner has “used [the mark] in commerce”\\nor has a bona fide intent to do so, 15 U.S.C. § 105, and courts have long held that the\\ncommerce must be “lawful” for it to satisfy the “use in commerce” requirement. See,\\ne.g., United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1225 (10th\\nCir. 2000). Helix urges us to adopt a similar interpretation for the FLSA. Although\\nthe Trademark Act and FLSA both regulate interstate commerce, however, they\\nfunction in fundamentally different ways. The Trademark Act confers a benefit on\\nowners who register their marks, securing a registrant’s right to benefit from a good\\nreputation and thus protecting him from unfair competition. See Matal v. Tam, 137\\nS. Ct. 1744, 1752–53 (2017). The FLSA, in contrast, prevents unfair competition,\\nnot by conferring a benefit on certain actors but by imposing obligations across the\\nlabor market. Reading “lawful” into the threshold commerce requirement here would\\nnot further the statute’s purposes by denying illegal businesses a benefit, as in the\\ntrademark context, but would thwart the FLSA’s goals by exempting illicit markets\\nfrom costs imposed on lawful employers.\\n\\n\\n 10\\n\\fU.S. at 35–36 (“Petitioner urges us to look beyond the plain language of the statute . .\\n\\n. . However, we conclude that the legislative intent fully supports the result achieved\\n\\nby application of the plain language.”).\\n\\n The district court correctly reasoned and case law has repeatedly confirmed\\n\\nthat employers are not excused from complying with federal laws just because their\\n\\nbusiness practices are federally prohibited. See, e.g., Sullivan, 274 U.S. at 263; see\\n\\nalso Greenwood v. Green Leaf Lab LLC, 2017 WL 3391671 at *3 (D. Or. July 13,\\n\\n2017), adopted by district court, 2017 WL 3391671 (D. Or. Aug. 7, 2017) (“[J]ust\\n\\nbecause an Employer is violating one federal law, does not give it license to violate\\n\\nanother.”) (internal citation omitted). This has been true with respect to the FLSA in\\n\\nmultiple contexts, strengthening the conclusion that it remains true in this novel\\n\\ncontext of the marijuana industry. See Donovan v. Burgett Greenhouses, Inc., 759\\n\\nF.2d 1483, 1485 (10th Cir. 1985); Bustamente, 2018 WL 2349507 at *1 (workers in\\n\\nan illegal gambling operation).4 Persuasive case law endorses the concept that the\\n\\nFLSA is focused on regulating the activity of businesses, in part on behalf of the\\n\\nindividual workers’ wellbeing, rather than regulating the legality of individual\\n\\nworkers’ activities. See, e.g., Haro v. City of Los Angeles, 745 F.3d 1249, 1256 (9th\\n\\n\\n 4\\n Helix attempts to distinguish these cases on the basis that those employees\\nwere engaging in entirely lawful commercial activities, whereas the employees here\\nare engaged in activities that violate the CSA. This argument is not convincing. The\\nillegal nature of the gambling activity in Bustamente was directly acknowledged by\\nthe court in a footnote, and the innocuous nature of the work being performed by\\nundocumented immigrants in the other cases discussed does not offset their active\\nviolations of federal law in obtaining work.\\n\\n 11\\n\\fCir. 2014). (“The FLSA is to be construed liberally in favor of employees;\\n\\nexemptions are narrowly construed against employers.”).\\n\\n Notably, Helix failed entirely to address the Oregon district court case that was\\n\\ncited here by both the district court and Mr. Kenney and is directly on-point.\\n\\nGreenwood, 2017 WL 3391671. The district court in Greenwood relied on a legal\\n\\nadvice memo written for the National Labor Relations Board to conclude that any\\n\\npossible violations of the CSA are not relevant to whether the FLSA’s protections\\n\\napply to workers in the marijuana industry. Id. at *2–3. Considering arguments\\n\\nnearly identical to those made by Helix here, the court in Greenwood denied\\n\\ndefendant’s motion to dismiss. See, e.g., id. at *3 (“I conclude that any possible\\n\\nviolations of the Controlled Substances Act are not relevant to whether the FLSA’s\\n\\nprotections apply to Plaintiff. . . . There is no inherent conflict between the FLSA’s\\n\\nrequirements and the Controlled Substances Act's prohibition of marijuana.”).\\n\\n Like the district court in Greenwood, we are not drawing any conclusions\\n\\nabout the merits of Mr. Kenney’s FLSA claims. We hold only that Mr. Kenney and\\n\\nsimilarly situated individuals are not categorically excluded from FLSA protections.\\n\\nAccordingly, we AFFIRM the district court’s denial of Helix’s motion to dismiss.\\n\\n\\n\\n\\n 12\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4489,"cells":{"id":{"kind":"number","value":4659329,"string":"4,659,329"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Aseracare, Inc."},"decision_date":{"kind":"string","value":"2019-09-09"},"docket_number":{"kind":"string","value":"16-13004"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before ROSENBAUM and JULIE CARNES, Circuit Judges, and SCHLESINGER,∗ District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"JULIE CARNES, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 16-13004 Date Filed: 09/09/2019 Page: 1 of 57\\n\\n\\n [PUBLISH]\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 16-13004\\n ________________________\\n\\n D.C. Docket No. 2:12-cv-00245-KOB\\n\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellant,\\n\\nversus\\n\\n\\nASERACARE, INC.,\\nGGNSC ADMINISTRATIVE SERVICES,\\nd.b.a. Golden Living,\\nf.k.a. Beverly Enterprises, Inc.,\\nHOSPICE PREFERRED CHOICE, INC.,\\nHOSPICE OF EASTERN CAROLINA, INC.,\\n\\n Defendants - Appellees.\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 2 of 57\\n\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Alabama\\n ________________________\\n\\n (September 9, 2019)\\n\\nBefore ROSENBAUM and JULIE CARNES, Circuit Judges, and\\nSCHLESINGER,∗ District Judge.\\n\\nJULIE CARNES, Circuit Judge:\\n\\n This case requires us to consider the circumstances under which a claim for\\n\\nhospice treatment under Medicare may be deemed “false” for purposes of the\\n\\nfederal False Claims Act. Defendants comprise a network of hospice facilities that\\n\\nroutinely bill Medicare for end-of-life care provided to elderly patients. In the\\n\\nunderlying civil suit, the Government alleged that Defendants had certified patients\\n\\nas eligible for Medicare’s hospice benefit, and billed Medicare accordingly, on the\\n\\nbasis of erroneous clinical judgments that those patients were terminally ill. Based\\n\\non the opinion of its expert witness, the Government contends that the patients at\\n\\nissue were not, in fact, terminally ill at the time of certification, meaning that\\n\\nAseraCare’s claims to the contrary were false under the False Claims Act.\\n\\n\\n\\n\\n∗ The Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of\\nFlorida, sitting by designation.\\n\\n\\n 2\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 3 of 57\\n\\n\\n As the case proceeded through discovery and a partial trial on the merits, the\\n\\ndistrict court confronted the following question: Can a medical provider’s clinical\\n\\njudgment that a patient is terminally ill be deemed false based merely on the\\n\\nexistence of a reasonable difference of opinion between experts as to the accuracy\\n\\nof that prognosis? The district court ultimately answered this question in the\\n\\nnegative and therefore granted summary judgment to AseraCare on the issue of\\n\\nfalsity.\\n\\n Upon careful review of the record and the relevant law, and with the benefit\\n\\nof oral argument, we concur with the district court’s ultimate determination that a\\n\\nclinical judgment of terminal illness warranting hospice benefits under Medicare\\n\\ncannot be deemed false, for purposes of the False Claims Act, when there is only a\\n\\nreasonable disagreement between medical experts as to the accuracy of that\\n\\nconclusion, with no other evidence to prove the falsity of the assessment. We do,\\n\\nhowever, think that the Government should have been allowed to rely on the entire\\n\\nrecord, not just the trial record, in making its case that disputed issues of fact,\\n\\nbeyond just the difference of opinion between experts, existed sufficient to warrant\\n\\ndenial of the district court’s post-verdict sua sponte reconsideration of summary\\n\\njudgment on the falsity question. We therefore affirm in part and remand in part.\\n\\n\\n\\n\\n 3\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 4 of 57\\n\\n\\nI. BACKGROUND 1\\n\\n Each year, more than a million Americans make the difficult decision to\\n\\nforgo curative care and turn instead to end-of-life hospice care, which is designed\\n\\nto relieve the pain and symptoms associated with terminal illness. See 79 Fed.\\n\\nReg. 50452, 50454–55 (Aug. 22, 2014). The federal government’s Medicare\\n\\nprogram makes such care affordable for a significant number of terminally ill\\n\\nindividuals. Defendants, collectively referred to as AseraCare, operate\\n\\napproximately sixty hospice facilities across nineteen states and admit around\\n\\n10,000 patients each year. Most of AseraCare’s patients are enrolled in Medicare.\\n\\nIn fact, from 2007 to 2012, Medicare payments composed approximately ninety-\\n\\nfive percent of AseraCare’s revenues. As such, AseraCare routinely prepares and\\n\\nsubmits claims for reimbursement under Medicare.\\n\\n This case began when three former AseraCare employees alleged that\\n\\nAseraCare had a practice of knowingly submitting unsubstantiated Medicare\\n\\nclaims in violation of the federal False Claims Act. We begin by setting out the\\n\\nrequirements hospice providers like AseraCare must meet in order to be entitled to\\n\\n\\n\\n\\n1\\n We derive the pertinent facts from the parties’ submissions, the summary judgment record, and\\nthe trial testimony presented in the proceeding below.\\n\\n\\n 4\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 5 of 57\\n\\n\\nhospice reimbursement and identifying the tools the Government uses to police\\n\\ncompliance with these requirements.\\n\\n A. The Medicare Hospice Benefit\\n\\n In order for a hospice claim to be eligible for Medicare reimbursement, the\\n\\npatient’s attending physician, if there is one, and the medical director of the\\n\\nhospice provider must “each certify in writing at the beginning of [each] period,\\n\\nthat the individual is terminally ill . . . based on the physician’s or medical\\n\\ndirector’s clinical judgment regarding the normal course of the individual’s\\n\\nillness.” 42 U.S.C. § 1395f(7)(A). “Terminally ill” means that the individual “has\\n\\na medical prognosis that the individual’s life expectancy is 6 months or less.” 42\\n\\nU.S.C. § 1395x(dd)(3)(A). Under the statute’s implementing regulations, a claim\\n\\nfor hospice reimbursement must conform to several requirements in order to be\\n\\npayable. Most notably for purposes of this appeal, the certification must be\\n\\naccompanied by “[c]linical information and other documentation that support the\\n\\nmedical prognosis,” and such support “must be filed in the medical record with the\\n\\nwritten certification.” 42 C.F.R. § 418.22(b)(2).\\n\\n An initial certification conforming to these requirements is valid for a period\\n\\nof ninety days. 42 U.S.C. § 1395f(7)(A). The patient must be recertified in a\\n\\nsimilar manner for each additional sixty- or ninety-day period during which he or\\n\\nshe remains in hospice. Id. While a life-expectancy prognosis of six months or\\n 5\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 6 of 57\\n\\n\\nless is a necessary condition for reimbursement, regulators recognize that\\n\\n“[p]redicting life expectancy is not an exact science.” 75 Fed. Reg. 70372, 70488\\n\\n(Nov. 17, 2010). Accordingly, the Medicare framework does not preclude\\n\\nreimbursement for periods of hospice care that extend beyond six months, as long\\n\\nas the patient’s eligibility is continually recertified. This framework also\\n\\nrecognizes that, in some cases, patients with an initial prognosis of terminality can\\n\\nimprove over time, and it allows such patients to exit hospice without losing their\\n\\nright to Medicare coverage to treat illness. Id. Thus, there is no statutory limit to\\n\\nthe number of periods for which a patient may be properly certified. 42 U.S.C.\\n\\n§ 1395d(d)(1) (establishing that hospice providers may collect reimbursement for\\n\\nan unlimited number of recertification periods).\\n\\n The Medicare program is overseen by the Centers for Medicare and\\n\\nMedicaid Services (“CMS”), a division of the Department of Health and Human\\n\\nServices. CMS operates locally through so-called Medicare Administrative\\n\\nContractors (“MACs”), which process claims from healthcare providers and make\\n\\npayment for eligible services. A majority of AseraCare’s Medicare claims are\\n\\nprocessed by a MAC called Palmetto GBA (“Palmetto”), which operates in the\\n\\nsoutheast United States.\\n\\n In preparing its claims for hospice reimbursement, AseraCare employs\\n\\ninterdisciplinary teams of skilled staff—including physicians, nurses,\\n 6\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 7 of 57\\n\\n\\npsychologists, social workers, and chaplains—that render services directly to\\n\\npatients and collectively make eligibility determinations. To guide this review,\\n\\nAseraCare professionals rely in part on documents called Local Coverage\\n\\nDeterminations (“LCDs”), which are issued by Palmetto’s medical directors.\\n\\nLCDs provide detailed lists of diagnostic guidance and clinical information that, if\\n\\ndocumented in a patient’s medical record, suggest that the patient has a life\\n\\nexpectancy of six months or less. LCDs are not clinical benchmarks or mandatory\\n\\nrequirements for hospice eligibility, however. Rather, they are designed to help\\n\\nclinical staff understand the type of information that should be considered prior to\\n\\nconcluding that a patient is terminally ill. The LCDs themselves explicitly state\\n\\nthat they are non-binding.\\n\\n Once AseraCare physicians reach a clinical judgment that a patient is\\n\\neligible for hospice care, AseraCare may begin providing treatment. It submits\\n\\nclaims to Palmetto for reimbursement only after care has been rendered. The trial\\n\\ntestimony of Mary Jane Schultz, a registered nurse and former director of\\n\\nPalmetto’s medical review team, clarified at trial the process by which Palmetto\\n\\nreviewed and paid claims for hospice coverage during the relevant time period of\\n\\n2007 to 2012. As Ms. Schultz described, the first round of claim review was\\n\\nconducted by an automated claim-processing system designed to ensure that no\\n\\ncritical information, such as a patient’s Medicare identification number, was\\n 7\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 8 of 57\\n\\n\\nmissing or invalid. If no critical information was missing, the system would then\\n\\ncheck for any “red flags” that might require further review of the claim—such as\\n\\nthe involvement of a particular provider, patient, or type of care that Palmetto staff\\n\\nbelieved may pose heightened eligibility risks. For instance, if Palmetto wished to\\n\\nconduct a targeted audit of claims submitted by a particular provider, it could\\n\\nprogram the automated system to pull all or a portion of those claims for additional\\n\\nreview before payment.\\n\\n If automated review uncovered no missing information or red flags, the\\n\\nsystem would process the claim directly for payment. As a result, Palmetto paid\\n\\nmany claims without directly reviewing the medical documentation underpinning\\n\\nthem. Where, on the other hand, a claim was flagged for heightened medical\\n\\nreview, Palmetto would immediately issue a request to the provider for medical\\n\\ndocumentation substantiating the patient’s terminal prognosis, such as notes from\\n\\nphysicians, nurses, and social workers and records of medications and treatments\\n\\nprescribed. A trained medical review team would then review the supporting\\n\\ndocumentation before determining whether the claim should be paid in full, paid in\\n\\npart, or denied. Like AseraCare’s medical staff, the medical review team\\n\\ncommonly uses the LCDs as guidelines in its assessment, but it is not required to\\n\\nrigidly apply their criteria. Instead, the review team also looks at the “whole\\n\\npicture” of information submitted with the claim.\\n 8\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 9 of 57\\n\\n\\n B. The False Claims Act\\n\\n The False Claims Act (“FCA”) serves as a mechanism by which the\\n\\nGovernment may police noncompliance with Medicare reimbursement standards\\n\\nafter payment has been made. The Act imposes civil liability—including treble\\n\\ndamages—on “any person who . . . knowingly presents, or causes to be presented,\\n\\na false or fraudulent claim for payment” to the federal government or who\\n\\n“knowingly makes, uses, or causes to be made or used, a false record or statement\\n\\nmaterial to a false or fraudulent claim.” 31 U.S.C. § 3729(a)(1)(A)–(B). To\\n\\nprevail on an FCA claim, the plaintiff must prove that the defendant (1) made a\\n\\nfalse statement, (2) with scienter, (3) that was material, (4) causing the\\n\\nGovernment to make a payment. Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039,\\n\\n1045 (11th Cir. 2015).\\n\\n Private citizens, called qui tam relators, are authorized to bring FCA suits on\\n\\nbehalf of the United States. 31 U.S.C. § 3730(b). The United States can, and\\n\\nfrequently does, intervene in qui tam suits to develop the civil case itself. Thus, to\\n\\nthe extent the Government concludes that it has reimbursed a hospice provider that\\n\\nknowingly submitted deficient claims, the Government can use the FCA cause of\\n\\naction to recoup payments and to penalize the provider.\\n\\nII. PROCEDURAL HISTORY\\n\\n A. Suit Against AseraCare Under the FCA\\n 9\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 10 of 57\\n\\n\\n The underlying case began in 2008, when three former AseraCare\\n\\nemployees, acting as qui tam relators, filed a complaint against AseraCare alleging\\n\\nsubmission of unsubstantiated hospice claims. Following a transfer of venue from\\n\\nthe Eastern District of Wisconsin to the Northern District of Alabama, the\\n\\nGovernment intervened and filed the operative complaint. In its complaint, the\\n\\nGovernment alleged that AseraCare knowingly employed reckless business\\n\\npractices that enabled it to admit, and receive reimbursement for, patients who\\n\\nwere not eligible for the Medicare hospice benefit “because it was financially\\n\\nlucrative,” thus “misspending” millions of Medicare dollars. The Government’s\\n\\ncomplaint described a corporate climate that pressured sales and clinical staff to\\n\\nmeet aggressive monthly quotas for patient intake and, in so doing, discouraged\\n\\nmeaningful physician involvement in eligibility determinations. More specifically,\\n\\nthe Government alleged that AseraCare “submitted documentation that falsely\\n\\nrepresented that certain Medicare recipients were ‘terminally ill’” when, in the\\n\\nGovernment’s view, they were not.\\n\\n In light of these allegations, the Government’s case falls under the “false\\n\\ncertification” theory of FCA liability. Under this theory, FCA liability may arise\\n\\nwhere a defendant falsely asserts or implies that it has complied with a statutory or\\n\\nregulatory requirement when, in actuality, it has not so complied. See Universal\\n\\nHealth Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 1999 (2016).\\n 10\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 11 of 57\\n\\n\\n In developing its case, the Government began by identifying a universe of\\n\\napproximately 2,180 patients for whom AseraCare had billed Medicare for at least\\n\\n365 continuous days of hospice care. The Government then focused its attention\\n\\non a sample of 223 patients from within that universe. Through direct review of\\n\\nthese patients’ medical records and clinical histories, the Government’s primary\\n\\nexpert witness, Dr. Solomon Liao, identified 123 patients from the sample pool\\n\\nwho were, in Dr. Liao’s view, ineligible for the hospice benefit at the time\\n\\nAseraCare received reimbursement for their care. Should it prevail as to this\\n\\ngroup, the Government intended to extrapolate from the sample to impose further\\n\\nliability on AseraCare for a statistically valid set of additional claims within the\\n\\nbroader universe of hospice patients for whom AseraCare received Medicare\\n\\npayments.\\n\\n To supplement the testimony of Dr. Liao, the Government also sought to\\n\\ndevelop evidence that AseraCare’s broader business practices fostered and\\n\\npromoted improper certification procedures while deemphasizing clinical training\\n\\non terminal-illness prognostication. Several former AseraCare employees,\\n\\nincluding the qui tam relators, supported the Government’s narrative by describing\\n\\na process in which physicians merely rubber-stamped terminal-illness certifications\\n\\nwithout thoroughly examining the relevant medical records underlying them.\\n\\n Importantly, though, the Government’s false-claims allegations in this case\\n 11\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 12 of 57\\n\\n\\nwere narrowly circumscribed. There were no allegations that AseraCare billed for\\n\\nphantom patients, that certifications or medical documentation were forged, or that\\n\\nAseraCare employees lied to certifying physicians or withheld critical information\\n\\nregarding patient conditions. Indeed, there was no doubt in the proceeding below\\n\\nthat AseraCare possessed accurate and comprehensive documentation of each\\n\\npatient’s medical condition and that its certifications of terminal illness were\\n\\nsigned by the appropriate medical personnel. Rather, the Government asserted that\\n\\nits expert testimony—contextualized by broad evidence of AseraCare’s improper\\n\\nbusiness practices—would demonstrate that the patients in the sample pool were\\n\\nnot, as a medical fact, terminally ill at the time AseraCare collected reimbursement\\n\\nfor their hospice care. The sole question related to the sufficiency of the clinical\\n\\njudgments on which the claims were based.\\n\\n On this theory, the Government sought to recover damages under two\\n\\nsubsections of the FCA, 31 U.S.C. § 3729(a)(1)(A)2 and 31 U.S.C.\\n\\n§ 3729(a)(1)(B),3 and on claims of common-law unjust enrichment and mistaken\\n\\n\\n\\n2\\n “[A]ny person who . . . knowingly presents, or causes to be presented, a false or fraudulent\\nclaim for payment or approval . . . is liable to the United States Government . . . .” 31 U.S.C.\\n§ 3729(a)(1)(A).\\n3\\n “[A]ny person who . . . knowingly makes, uses, or causes to be made or used, a false record or\\nstatement material to a false or fraudulent claim . . . is liable to the United States\\nGovernment . . . .” 31 U.S.C. § 3729(a)(1)(B).\\n\\n\\n 12\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 13 of 57\\n\\n\\npayment.\\n\\n B. First Motion for Summary Judgment\\n\\n Following extensive discovery and expert analysis of relevant patient\\n\\nrecords, AseraCare moved for summary judgment on the ground that the\\n\\nGovernment failed to adduce evidence of the falsity of any disputed claims and\\n\\nfailed to show that AseraCare had any knowledge of the alleged falsity. Most\\n\\nnotably for purposes of this appeal, AseraCare put squarely before the district court\\n\\nthe question whether the Government’s medical-opinion evidence was sufficient to\\n\\nestablish the threshold element of falsity. To that point, AseraCare urged the\\n\\ndistrict court to embrace a “reasonable doctor” standard for the assessment of\\n\\nfalsity, which would state that, to avoid summary judgment in an action involving\\n\\nfalse claims for hospice reimbursement, the Government must show that a\\n\\nreasonable physician applying his or her clinical judgment could not have held the\\n\\nopinion that the patient at issue was terminally ill at the time of certification.4\\n\\n The district court found the “reasonable doctor” standard “appealing and\\n\\nlogical,” but noted that it had not been adopted by the Eleventh Circuit and\\n\\n4\\n AseraCare asked the district court to adopt the standard for falsity established by the Northern\\nDistrict of Illinois in a case with a similar fact pattern and posture. The court in that case\\ndismissed FCA claims against a for-profit hospice facility because relators failed to allege facts\\n“demonstrating that the certifying physician did not or could not have believed, based on his or\\nher clinical judgment, that the patient was eligible for hospice care.” United States ex rel.\\nGeschrey v. Generations Healthcare, LLC, 922 F. Supp. 2d 695, 703 (N.D. Ill. 2012).\\n\\n\\n 13\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 14 of 57\\n\\n\\ndeclined to apply it. The court ultimately denied AseraCare’s motion for summary\\n\\njudgment, concluding that fact questions remained regarding whether clinical\\n\\ninformation and other documentation in the relevant medical records supported the\\n\\ncertifications of terminal illness on which AseraCare’s claims were based.\\n\\n Following the denial of its motion for summary judgment, AseraCare moved\\n\\nto certify the following question for interlocutory appeal before this Court under\\n\\n28 U.S.C. § 1292(b):\\n\\n In a False Claims Act case against a hospice provider relating to the\\n eligibility of a patient for the Medicare hospice benefit, for the\\n Government to establish the falsity element under 31 U.S.C.\\n § 3729(a)(1), must it show that, in light of the patient’s clinical\\n information and other documentation, no reasonable physician could\\n have believed, based on his or her clinical judgment, that the patient\\n was eligible for the Medicare hospice benefit?\\n\\nThe district court certified the question for interlocutory appeal. We considered\\n\\nAseraCare’s motion for review but declined to consider the question at that stage\\n\\nof the proceeding.\\n\\n C. Bifurcation of Trial\\n\\n Subsequent to the denial of summary judgment, AseraCare moved the\\n\\ndistrict court to bifurcate trial under Federal Rule of Civil Procedure 42(b) into two\\n\\nphases: one phase on the falsity element of the FCA and a second phase on the\\n\\nFCA’s remaining elements and the Government’s common-law claims. The\\n\\nGovernment vehemently opposed the motion. It argued that the proposed\\n\\n 14\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 15 of 57\\n\\n\\nbifurcation was “extraordinary,” requiring the Government “to jump over an\\n\\narbitrary hurdle that is without precedent” because “the elements of ‘falsity’ and\\n\\n‘knowledge of falsity’ are not so distinct and separable that they may be tried\\n\\nseparately without injustice.” Indeed, the Government noted, the elements of FCA\\n\\nliability had “never before been bifurcated by a federal district court.” The\\n\\nGovernment further argued that bifurcation was unworkable because documentary\\n\\nand testimonial evidence that was probative in the falsity phase—“because it\\n\\nundermines the reliability of the [certifications of terminal illness]”—was “also\\n\\nprobative in the ‘knowledge of falsity’ phase because it shows AseraCare knew or\\n\\nshould have known that it was submitting false claims for non-terminally [sic]\\n\\npatients.”\\n\\n Nonetheless, the district court granted the motion in light of its concern that\\n\\nevidence pertinent to the knowledge element of the FCA would confuse the jury’s\\n\\nanalysis of the threshold question of whether the claims at issue were “false” in the\\n\\nfirst instance. The court noted that, while “pattern and practice” evidence showing\\n\\ndeficiencies in AseraCare’s admission and certification procedures could help\\n\\nestablish AseraCare’s knowledge of the alleged scheme to submit false claims—the\\n\\nsecond element of the Government’s case—the falsity of the claims “cannot be\\n\\ninferred by reference to AseraCare’s general corporate practices unrelated to\\n\\nspecific patients.” In the court’s view, allowing the Government to present\\n 15\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 16 of 57\\n\\n\\nknowledge evidence before falsity was determined would be unduly prejudicial to\\n\\nAseraCare, thus warranting separation of the knowledge and falsity elements.\\n\\n In accordance with this rationale, the district court “drew the line of\\n\\nadmissibility” in Phase One of trial “at anecdotal evidence about a specific, but\\n\\nunidentified, patient or event that would be impossible for the Defense to rebut.”\\n\\nThe court did, however, allow in Phase One anecdotal testimony regarding\\n\\nimproper clinical or corporate practices that “had a time and place nexus with the\\n\\n123 allegedly ineligible patients at issue.” Such testimony, in the court’s view,\\n\\nwould have been “highly probative and admissible in Phase One.” Indeed, in\\n\\nbifurcating trial, the court presumed—based on the Government’s own\\n\\nrepresentations—that the Government possessed and would present such evidence\\n\\nin Phase One. The court did allow in Phase One general testimony regarding\\n\\nAseraCare’s business practices and claim-submission process during the relevant\\n\\ntime period, but only to contextualize the falsity analysis and “afford[] the jury an\\n\\nopportunity to more fully understand the hospice process within AseraCare.” Such\\n\\nevidence was not, however, admissible to prove the falsity of the claims at issue. 5\\n\\n\\n\\n\\n5\\n The Government continues to complain on appeal that bifurcation of the trial was\\n“fundamentally unfair” and confused the issues, albeit it does not expressly challenge on appeal\\nthe district court’s decision.\\n\\n\\n 16\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 17 of 57\\n\\n\\n D. Phase One of Trial\\n\\n The first phase of the trial lasted approximately eight weeks and proceeded\\n\\nto a jury verdict largely against AseraCare on the question of falsity. During its\\n\\ncase in chief, the Government presented several days of testimony from Dr. Liao,\\n\\nwho explained that, in his expert opinion, the medical records of the patients at\\n\\nissue did not support AseraCare’s “terminal illness” certifications because they did\\n\\nnot reveal a life expectancy of six months or less. Dr. Liao made clear that his\\n\\ntestimony was a reflection of only his own clinical judgment based on his after-the-\\n\\nfact review of the supporting documentation he had reviewed. He conceded that\\n\\nhe was “not in a position to discuss whether another physician [was] wrong about a\\n\\nparticular patient’s eligibility. Nor could he say that AseraCare’s medical expert,\\n\\nwho disagreed with him concerning the accuracy of the prognoses at issue, was\\n\\nnecessarily “wrong.” Notably, Dr. Liao never testified that, in his opinion, no\\n\\nreasonable doctor could have concluded that the identified patients were terminally\\n\\nill at the time of certification. Instead, he only testified that, in his opinion, the\\n\\npatients were not terminally ill. Even more notable is the fact that Dr. Liao himself\\n\\nchanged his opinion concerning the eligibility of certain patients over the course of\\n\\nthe proceeding—deciding that some of the patients he had earlier concluded were\\n\\nnot terminally ill were in fact terminally ill. Nevertheless, he testified at trial that\\n\\nboth sets of contradictory opinions remained “accurate to a reasonable degree of\\n 17\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 18 of 57\\n\\n\\ncertainty.” To explain these reversals, Dr. Liao stated that he “was not the same\\n\\nphysician in 2013 as [he] was in 2010.”\\n\\n The Government also presented testimony of the relators and other\\n\\nAseraCare employees regarding AseraCare’s certification procedures, but, as\\n\\ndiscussed supra, this testimony was characterized as being offered solely to show\\n\\ncontext, not falsity. In rebuttal, AseraCare offered expert testimony that directly\\n\\ncontradicted Dr. Liao’s opinions.\\n\\n The parties’ expert witnesses disagreed along two lines. First and foremost,\\n\\nthey fundamentally differed as to how a doctor should analyze a patient’s life\\n\\nexpectancy for Medicare reimbursement purposes. The Government’s Dr. Liao\\n\\napplied what might be called a “checkbox approach” to assessing terminal illness:\\n\\nHe examined the patients’ records and compared them against Palmetto’s LCDs\\n\\n(and other, similar medical guidelines) for specific diagnoses, including\\n\\nAlzheimer’s, heart disease, cardiopulmonary disease, and “adult failure to thrive.”\\n\\nBy contrast, AseraCare’s experts considered but did not formulaically apply the\\n\\nLCD guidance in making their assessments. Instead, they took a “whole patient”\\n\\napproach, making prognoses based on the entirety of the patient’s history, the\\n\\nconfluence of ailments from which a patient may be suffering, and their own\\n\\nexperience with end-of-life care. AseraCare’s experts did not discount the LCD\\n\\n“criteria,” but—as the latter instruct— these experts did not consider themselves\\n 18\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 19 of 57\\n\\n\\ncompelled to conclude that a patient was ineligible merely because the patient had\\n\\nfailed to meet one of those indicia.\\n\\n The district court correctly stated in its instructions to the jury that the LCDs\\n\\nare “eligibility guidelines” that are not binding and should not be considered “the\\n\\nexact criteria used for determining” terminal illness. As such, the jury was not\\n\\npermitted to conclude that Dr. Liao’s testimony was more credible because he\\n\\nmade reference to the LCD criteria, or that AseraCare’s claims were false if they\\n\\nfailed to conform to those criteria. Nonetheless, the experts’ disagreement as to the\\n\\nproper analytical approach impacted their ultimate judgments as to each patient’s\\n\\nterminality.\\n\\n Because neither the checkbox approach nor the holistic approach to making\\n\\nterminal-illness prognoses is contrary to the law, the jury’s sole job at trial was to\\n\\nreview the medical records of each patient and decide which experts’ testimony\\n\\nseemed more persuasive on the question whether a particular patient should be\\n\\ncharacterized as “terminally ill” at the time of certification. To be clear, the\\n\\nGovernment never alleged that AseraCare’s doctors relied on medical\\n\\ndocumentation that was too thin, vague, or lacking in detail to reasonably\\n\\nsubstantiate their “clinical judgments” of terminal illness. Indeed, there is no\\n\\ndispute that each patient certification was supported by a meaningful set of medical\\n\\nrecords evidencing various serious and chronic ailments for which the patient was\\n 19\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 20 of 57\\n\\n\\nentitled to some level of treatment. The question before the jury was instead which\\n\\ndoctor’s interpretation of those medical records sounded more correct. In other\\n\\nwords, in this battle of experts, the jury was to decide which expert it thought to be\\n\\nmore persuasive, with the less persuasive opinion being deemed to be false. To\\n\\nguide that assessment, the district court provided the following instruction on\\n\\nfalsity: “A claim is ‘false’ if it is an assertion that is untrue when made or used.\\n\\nClaims to Medicare may be false if the provider seeks payment, or reimbursement,\\n\\nfor health care that is not reimbursable.”\\n\\n Ultimately, the expert testimony in this case revealed a fundamental\\n\\ndifference of professional opinion regarding the manner in which each patient’s\\n\\ncomplete medical picture contributed to his or her life expectancy at the time he or\\n\\nshe received hospice care. Both sets of experts looked at the same medical\\n\\ndocumentation, considered the same medical standards for the terminal-illness\\n\\ndetermination (even while differing as to the weight such standards should be\\n\\ngiven), and relied on their own experience as seasoned physicians specializing in\\n\\nend-of-life care. Dr. Liao testified that, in his professional opinion, the patients at\\n\\nissue were not likely to die within six months of the date on which they were\\n\\ncertified for hospice care. AseraCare’s experts arrived at opposite conclusions.\\n\\n As an illustration of this disagreement, consider the testimony of the\\n\\nGovernment’s Dr. Liao and AseraCare’s Dr. Gail Cooney regarding the patient\\n 20\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 21 of 57\\n\\n\\nElsin K., who was an AseraCare hospice patient for over a year and who ultimately\\n\\ndied in an AseraCare facility. Elsin was first admitted to hospice upon her\\n\\nphysician’s diagnosis of “debility,” also called “adult failure to thrive,” in which a\\n\\npatient experiences a general decline in health due to old age. Elsin experienced\\n\\nsubsequent periods of improvement and decline; she left hospice care and was\\n\\nrecertified on at least two occasions before her death.\\n\\n As with each patient at issue in this case, Dr. Liao’s assessment of Elsin’s\\n\\nhospice eligibility contrasted starkly with Dr. Cooney’s, even though there was no\\n\\ndispute as to Elsin’s underlying diagnoses. Dr. Liao noted that many of Elsin’s\\n\\nailments, including severe infections arising from a joint replacement, were\\n\\nchronic and had recurred for many years. He also noted that she did not\\n\\ndemonstrate the level of physical debility that published medical criteria typically\\n\\nassociate with terminal patients. On the basis of his medical review, he described\\n\\nElsin as struggling with chronic illness but “overall rather stable, if not\\n\\nimproving,” and thus lacking a prognosis of six months or less to live at the time of\\n\\nher certifications and recertifications. Dr. Cooney, the defense expert, also\\n\\nrecognized that Elsin “had been sick for a long time,” but she saw in the medical\\n\\nrecords a trend of steady physical and mental decline, decreased mobility, and\\n\\nincreasing pain. Elsin’s physical and psychological ailments, viewed in\\n\\ncombination with one another, complicated the picture of Elsin’s overall health and\\n 21\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 22 of 57\\n\\n\\ncontributed to Dr. Cooney’s judgment that Elsin was terminally ill during each\\n\\nrelevant time period. In the Government’s view, it was properly within the\\n\\npurview of the jury to decide which doctor’s judgment was correct and, to the\\n\\nextent the jury found Dr. Liao’s prognosis to be more persuasive, to find that\\n\\nAseraCare had thereby submitted a false statement when it filed a claim based on a\\n\\nprognosis that differed from Dr. Liao’s.\\n\\n At the conclusion of the parties’ cases, the court instructed the jury to\\n\\nanswer special interrogatories regarding the prognoses of each of the 123 patients\\n\\nat issue. The jury ultimately found that AseraCare had submitted false claims for\\n\\n104 patients of the 123 patients at issue during the relevant time periods.\\n\\n E. Grant of New Trial and Second Motion for Summary Judgment\\n\\n Following the partial verdict in this first phase of trial, AseraCare moved for\\n\\njudgment as a matter of law, arguing that the court had articulated the wrong legal\\n\\nstandard in its instructions to the jury. The district court agreed. In the court’s\\n\\nown words, “[a]s the court worked through AseraCare’s challenges,” it “became\\n\\nconvinced that it had committed reversible error in the instructions it provided to\\n\\nthe jury.” It ultimately concluded that proper jury instructions would have advised\\n\\nthe jury of two “key points of law” that the court had not previously\\n\\nacknowledged: (1) that the FCA’s falsity element requires proof of an objective\\n\\nfalsehood; and (2) that a mere difference of opinion between physicians, without\\n 22\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 23 of 57\\n\\n\\nmore, is not enough to show falsity. AseraCare had advocated for this legal\\n\\nstandard since the start of trial, but only after hearing all the evidence had the court\\n\\nbecome “convinced” that “a difference of opinion is not enough.” The court\\n\\nultimately concluded that the failure to instruct the jury on these points was\\n\\nreversible error and that the only way to cure the prejudice caused thereby was to\\n\\norder a new trial.\\n\\n The court then went one step further, deciding to consider summary\\n\\njudgment sua sponte under Federal Rule of Civil Procedure 56(f)(3). Specifically,\\n\\nit informed the parties that it intended to consider “whether the Government, under\\n\\nthe correct legal standard, has sufficient admissible evidence of more than just a\\n\\ndifference of opinion to show that the claims at issue are objectively false as a\\n\\nmatter of law.” The court gave the parties an opportunity to brief the issue,\\n\\nadvising that:\\n\\n The Government’s proof under the FCA for the falsity element would\\n fail as a matter of law if all the Government has as evidence of falsity\\n in the second trial is Dr. Liao’s opinion based on his clinical judgment\\n and the medical records that he contends do not support the prognoses\\n for the 123 patients at issue in Phase One.\\n\\n In its summary-judgment briefing, the Government argued that it was\\n\\nprocedurally improper for the court to raise summary judgment sua sponte after\\n\\nalready deciding to grant a new trial. The district court rejected this argument, and\\n\\nthe Government does not revive the challenge on appeal.\\n 23\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 24 of 57\\n\\n\\n Following briefing and a hearing, the court granted summary judgment in\\n\\nAseraCare’s favor on the basis of the court’s newly adopted legal standard. The\\n\\ncourt concluded, “[a]fter careful review of all [the parties’] submissions and the\\n\\nPhase One [trial] record, . . . that the Government has failed to point the court to\\n\\nany admissible evidence to prove falsity other than Dr. Liao’s opinion that the\\n\\nmedical records for the 123 patients at issue did not support the Certifications of\\n\\nTerminal Illness” that were submitted for Medicare reimbursement. Because\\n\\n“[t]he Government [ ] presented no evidence of an objective falsehood for any of\\n\\nthe patients at issue,” it could not prove the falsity element of its FCA claim as a\\n\\nmatter of law. The court thus granted summary judgment in AseraCare’s favor.\\n\\n The Government appeals the district court’s summary judgment order and its\\n\\ngrant of a new trial, contending that the legal standard the court ultimately adopted\\n\\nreflected a “deeply flawed” understanding of the falsity element of an FCA claim.\\n\\nThe Government thus asks this Court to reject the legal standard for falsity that the\\n\\ndistrict court adopted, reverse the district court’s grant of summary judgment and\\n\\norder of a new trial, and reinstate the jury’s Phase One findings: namely, that the\\n\\nGovernment successfully proved falsity as to several of the claims at issue.\\n\\nIII. STANDARD OF REVIEW\\n\\n This Court reviews the district court’s grant of summary judgment de novo,\\n\\nviewing all the evidence and drawing all reasonable inferences in favor of the non-\\n 24\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 25 of 57\\n\\n\\nmoving party. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir.\\n\\n2005). By contrast, we review a district court’s ruling on a motion for a new trial\\n\\nfor abuse of discretion. Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th\\n\\nCir. 1984).\\n\\nIV. DISCUSSION\\n\\n This appeal requires us to consider how Medicare’s requirements for hospice\\n\\neligibility—which are centered on the subjective “clinical judgment” of a\\n\\nphysician as to a patient’s life expectancy—intersect with the FCA’s falsity\\n\\nelement. Under this Court’s precedent, “Medicare claims may be false if they\\n\\nclaim reimbursement for services or costs that either are not reimbursable or were\\n\\nnot rendered as claimed.” United States ex rel. Walker v. R&F Props. of Lake Cty.,\\n\\nInc., 433 F.3d 1349, 1356 (11th Cir. 2005). There is no allegation that the hospice\\n\\nservices AseraCare provided were not rendered as claimed. Thus, the sole\\n\\nquestion is whether the claims AseraCare submitted were reimbursable under the\\n\\nMedicare framework for hospice care—that is, whether AseraCare’s certifications\\n\\nthat patients were terminally ill satisfied Medicare’s statutory and regulatory\\n\\nrequirements for reimbursement. If not, the claims are capable of being “false” for\\n\\nFCA purposes.\\n\\n Thus framed, our primary task on appeal is to clarify the scope of the\\n\\nhospice eligibility requirements, which are set out in the federal Medicare statute,\\n 25\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 26 of 57\\n\\n\\n42 U.S.C. § 1395f, and its implementing regulation, 42 C.F.R. § 418.22. Our\\n\\nsecondary task is to determine whether the district court’s formulation of the falsity\\n\\nstandard was consistent with the law and properly applied. Neither this Court nor\\n\\nany of our sister circuits has considered the standard for falsity in the context of the\\n\\nMedicare hospice benefit, where the controlling condition of reimbursement is a\\n\\nmatter of clinical judgment. After careful review of the relevant law, the\\n\\nunderlying record, and the considerations raised by the parties and the amici\\n\\ncuriae, we agree that the instruction given to the jury was inadequate and agree\\n\\nwith the general sense of the legal standard embraced by the district court after the\\n\\nverdict.\\n\\n A. Legal Standard for Falsity of Hospice Claims\\n\\n The Government argues that the district court’s initial jury instructions—that\\n\\n“[a] claim is ‘false’ if it is an assertion that is untrue when made or used” and that\\n\\n“[c]laims to Medicare may be false if the provider seeks payment, or\\n\\nreimbursement, for health care that is not reimbursable”—comprised a complete\\n\\nand correct statement of the legal standard for falsity. As applied to this case, the\\n\\nGovernment argues that it can show falsity by producing expert testimony that a\\n\\npatient’s medical records do not support a terminal-illness prognosis as a factual\\n\\nmatter. Where the parties present competing expert views on a patient’s prognosis,\\n\\nthe “falsity” of the defendant’s prognosis is put to a jury.\\n 26\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 27 of 57\\n\\n\\n AseraCare contests the Government’s characterization of the statutory and\\n\\nregulatory framework, arguing that the determinative inquiry in an eligibility\\n\\nanalysis is whether the certifying physician exercised genuine clinical judgment\\n\\nregarding a patient’s prognosis and further arguing that the accuracy of such\\n\\njudgment is not susceptible to being proven true or false as a factual matter.\\n\\n Given the dearth of controlling case law regarding the intersection of the\\n\\nFCA and the Medicare hospice benefit and the parties’ vigorous disagreement on\\n\\nthe fundamental points of law, we begin by defining the contours of the hospice-\\n\\neligibility framework and clarifying the circumstances under which a claim\\n\\nviolates the requirements for reimbursement. We then consider the ways in which\\n\\na hospice claim might be deemed “false” for purposes of the FCA.\\n\\n 1. Hospice Eligibility Framework\\n\\n Our analysis begins with the language of the relevant statute and regulations.\\n\\nSee United States v. Aldrich, 566 F.3d 976, 978 (11th Cir. 2009) (“[T]he ‘starting\\n\\npoint’ of statutory interpretation is ‘the language of the statute itself.’”) (citing\\n\\nRandall v. Loftsgaarden, 478 U.S. 647, 656 (1986)). “To determine the plain\\n\\nmeaning of a statute or regulation, we do not look at one word or term in isolation,\\n\\nbut rather look to the entire statutory or regulatory context.” Sec. & Exch. Comm’n\\n\\nv. Levin, 849 F.3d 995, 1003 (11th Cir. 2017).\\n\\n\\n\\n 27\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 28 of 57\\n\\n\\n In relevant part, the statute states that payment for hospice care provided to\\n\\nan individual may be made only if:\\n\\n (i) in the first 90-day period . . . (I) the individual’s attending\\n physician . . . and (II) the medical director (or physician\\n member of the interdisciplinary group described in [42 U.S.C.\\n § 1395x(dd)(2)(B)]) of the hospice program providing . . . the\\n care, each certify in writing at the beginning of the period, that\\n the individual is terminally ill (as defined in [42 U.S.C.\\n § 1395x(dd)(3)(A)]) based on the physician’s or medical\\n director’s clinical judgment regarding the normal course of the\\n individual’s illness, [and]\\n\\n (ii) in a subsequent 90- or 60-day period, the medical director or\\n physician . . . recertifies at the beginning of the period that the\\n individual is terminally ill based on such clinical judgment.\\n\\n42 U.S.C. § 1395f(a)(7)(A) (emphasis added). 6 “Terminally ill” means that the\\n\\nindividual “has a medical prognosis that the individual’s life expectancy is 6\\n\\n\\n\\n6\\n The statute contains three additional requirements, each of which was in place during the\\nrelevant time period of 2007 through 2012:\\n\\n (B) a written plan for providing hospice care with respect to such individual has been\\n established . . . and is periodically reviewed by the individual’s attending physician\\n and by the medical director (and the interdisciplinary group described in 42 U.S.C.\\n § 1395x(dd)(2)(B)]) of the hospice program;\\n\\n (C) such care is being or was provided pursuant to such plan of care; [and]\\n\\n (D) on and after January 1, 2011 . . . a hospice physician or nurse practitioner has a face-\\n to-face encounter with the individual to determine continued eligibility . . . prior to\\n the 180th-day recertification and each subsequent recertification . . . and attests that\\n such visit took place . . . .\\n\\n42 U.S.C. § 1395f(a)(7). The Government does not allege that AseraCare failed to meet any of\\nthese additional requirements.\\n\\n\\n 28\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 29 of 57\\n\\n\\nmonths or less.” 42 U.S.C. § 1395x(dd)(3)(A). In any case, “no payment may be\\n\\nmade . . . for any expenses incurred . . . which are not reasonable and necessary for\\n\\nthe palliation or management of terminal illness.” 42 U.S.C. § 1395y(a)(1)(C).\\n\\n The implementing regulations echo the language of the statute, reiterating\\n\\nthat each written certification of terminal illness “will be based on the physician’s\\n\\nor medical director’s clinical judgment regarding the normal course of the\\n\\nindividual’s illness.” 42 C.F.R. § 418.22(b). See also 42 C.F.R. § 418.22(a)(1)\\n\\n(stating “general rule” that hospice provider “must obtain written certification of\\n\\nterminal illness” for each claimed period of care).\\n\\n The regulations go on to identify several requirements for the submission of\\n\\nclaims. First, and most significant to this appeal, “[c]linical information and other\\n\\ndocumentation that support the medical prognosis must accompany the\\n\\ncertification and must be filed in the medical record with the written certification.”\\n\\n42 C.F.R. § 418.22(b)(2). Second, the certifying physician must include with the\\n\\ncertification “a brief narrative explanation of the clinical findings that supports a\\n\\nlife expectancy of 6 months or less.” 42 C.F.R. § 418.22(b)(3). This narrative\\n\\nexplanation “must reflect the patient’s individual clinical circumstances and cannot\\n\\ncontain check boxes or standard language used for all patients.” 42 C.F.R.\\n\\n\\n\\n\\n 29\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 30 of 57\\n\\n\\n§ 418.22(b)(3)(iv).7 And third, in deciding whether to certify a patient as\\n\\nterminally ill, a physician is obligated to consider several factors: the patient’s\\n\\nprimary terminal condition and related diagnoses; current subjective and objective\\n\\nmedical findings; current medication and treatment orders; and information about\\n\\nthe medical management of any conditions unrelated to the terminal illness.\\n\\n42 C.F.R. § 418.102(b); 42 C.F.R. § 418.25(b) (establishing that, “[i]n reaching a\\n\\ndecision to certify that the patient is terminally ill, the hospice medical direct must\\n\\nconsider at least” the diagnosis of the patient, other health conditions, and\\n\\n“[c]urrent clinically relevant information supporting all diagnoses”). See also 78\\n\\nFed. Reg. 48234, 48247 (Aug. 7, 2013) (“[T]he certification of terminal illness is\\n\\nbased in the unique clinical picture of the individual that is reflected in the\\n\\ncomprehensive assessment and other clinical records and documentation . . . .”); 79\\n\\nFed. Reg. 50452, 50471 (Aug. 22, 2014) (noting that, in deciding whether to\\n\\nrecertify a patient who has not shown measurable decline, the physician “must\\n\\nassess and evaluate the full clinical picture” of the patient).\\n\\n The language of the statute and implementing regulations makes plain that\\n\\nthe clinical judgment of the patient’s attending physician (or the provider’s medical\\n\\n\\n\\n7\\n The requirement of a brief narrative explanation accompanying the certification was added to\\nthe regulations on October 1, 2009. See 74 Fed. Reg. 39384, 39398–400, 39413 (Aug. 6, 2009).\\n\\n\\n 30\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 31 of 57\\n\\n\\ndirector, as the case may be) lies at the center of the eligibility inquiry. Under this\\n\\nlanguage, a patient is eligible for the Medicare hospice benefit if the appropriate\\n\\nphysician makes a clinical judgment that the patient is terminally ill in light of the\\n\\npatient’s complete medical picture, as evidenced by the patient’s medical records.\\n\\n Importantly, none of the relevant language states that the documentary\\n\\nrecord underpinning a physician’s clinical judgment must prove the prognosis as a\\n\\nmatter of medical fact. Indeed, CMS has recognized in crafting the implementing\\n\\nregulations that “[p]redicting life expectancy is not an exact science.” 75 Fed.\\n\\nReg. 70372, 70448 (Nov. 17, 2010). See also 79 Fed. Reg. at 50470 (“[W]e also\\n\\nhave recognized the challenges in prognostication” and therefore expect “that the\\n\\ncertifying physicians will use their best clinical judgment.”). 8 Nor does this\\n\\nframework state or imply that the patient’s medical records must unequivocally\\n\\ndemonstrate to an unaffiliated physician, reviewing the records after the fact, that\\n\\nthe patient was likely to die within six months of the time the certifying\\n\\nphysician’s clinical judgment was made. Rather, the framework asks a physician\\n\\n\\n\\n\\n8\\n We have held in the context of FCA proceedings that “guidance issued by the governmental\\nagency charged with administrating the regulatory scheme,” including the Medicare regulatory\\nscheme, “can be consulted to understand the meaning of that regulation.” United States ex rel.\\nWalker v. R&F Props. of Lake Cty., Inc., 433 F.3d 1349, 1357 (11th Cir. 2005).\\n\\n\\n 31\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 32 of 57\\n\\n\\nresponsible for the patient’s care to exercise his or her judgment as to the proper\\n\\ninterpretation of the patient’s medical records.\\n\\n The Government seeks to elevate the significance of the regulation’s\\n\\nsupporting-documentation requirement, asserting that eligibility “turns on”\\n\\nwhether the clinical information and other documentation accompanying a\\n\\ncertification of terminal illness support, as a factual matter, the physician’s\\n\\ncertification. Specifically, the Government maintains that the testimony of Dr.\\n\\nLiao, which “was designed to assist the jury in understanding the medical records”\\n\\nfor each patient, created “a factual dispute as to whether ‘[c]linical information and\\n\\nother documentation’ in the medical record ‘support[ed] the medical prognosis’ of\\n\\na life expectancy of six months or less.” (Citing 42 C.F.R. § 418.22(b)(2).)\\n\\n We conclude that the Government’s framing of the eligibility inquiry is not\\n\\nconsistent with the text or design of the law. The relevant regulation requires only\\n\\nthat “clinical information and other documentation that support the medical\\n\\nprognosis . . . accompany the certification” and “be filed in the medical record.”\\n\\n42 C.F.R. § 418.22(b)(2) (emphases added). This “medical prognosis” is, itself,\\n\\n“based on the physician’s . . . clinical judgment.” 42 C.F.R. § 418.22(b). To\\n\\nconclude that the supporting documentation must, standing alone, prove the\\n\\nvalidity of the physician’s initial clinical judgment would read more into the legal\\n\\nframework than its language allows. Read in the context of the statute and\\n 32\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 33 of 57\\n\\n\\nregulations, the requirement that supporting documentation “accompany” the claim\\n\\nis designed to address CMS’s mandate that “there must be a clinical basis for a\\n\\ncertification.” 79 Fed. Reg. at 50470 (noting that, although “certification is based\\n\\non a clinical judgment,” this “does not negate the fact that there must be a clinical\\n\\nbasis for a certification”). That is, the physician’s clinical judgment dictates\\n\\neligibility as long as it represents a reasonable interpretation of the relevant\\n\\nmedical records.\\n\\n We also note that, had Congress or CMS intended the patient’s medical\\n\\nrecords to objectively demonstrate terminal illness, it could have said so. Yet,\\n\\nCongress said nothing to indicate that the medical documentation presented with a\\n\\nclaim must prove the veracity of the clinical judgment on an after-the-fact review.\\n\\nAnd CMS’s own choice of the word “support”—instead of, for example,\\n\\n“demonstrate” or “prove”—does not imply the level of certitude the Government\\n\\nwishes to attribute to it. Cf. Davidson v. Capital One Bank (USA), N.A., 797 F.3d\\n\\n1309, 1316 (11th Cir. 2015) (We “presume that Congress said what it meant and\\n\\nmeant what it said.”) (quotation marks omitted).\\n\\n More broadly, CMS’s rulemaking commentary signals that well-founded\\n\\nclinical judgments should be granted deference. As noted supra, CMS has\\n\\nrepeatedly emphasized that “[p]redicting life expectancy is not an exact science.”\\n\\n75 Fed. Reg. at 70448. See also 79 Fed. Reg. at 50470 (same). And in clarifying\\n 33\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 34 of 57\\n\\n\\nthe process for reporting a patient’s “principal hospice diagnosis” on a hospice\\n\\nclaim, CMS stated: “We believe that the certifying physicians have the best\\n\\nclinical experience, competence and judgment to make the determination that an\\n\\nindividual is terminally ill.” 78 Fed. Reg. at 48247. Furthermore, in response to\\n\\npublic comment, CMS removed the term “criteria” from a proposed regulation\\n\\ndefining the certification requirements, wishing “to remove any implication that\\n\\nthere are specific CMS clinical benchmarks in this rule that must be met in order to\\n\\ncertify terminal illness.” 73 Fed. Reg. 32088, 32138 (June 5, 2008). While there is\\n\\nno question that clinical judgments must be tethered to a patient’s valid medical\\n\\nrecords, it is equally clear that the law is designed to give physicians meaningful\\n\\nlatitude to make informed judgments without fear that those judgments will be\\n\\nsecond-guessed after the fact by laymen in a liability proceeding.\\n\\n The Government cautions that a narrow reading of the eligibility framework\\n\\n“would entitle hospice providers to reimbursement for services provided to any\\n\\nindividual, regardless of medical condition, assuming the provider could find a\\n\\nphysician willing to sign the certification.” This point again ignores that the\\n\\nphysician’s clinical judgment, informed by the patient’s medical records, is the\\n\\nthreshold requirement for eligibility. A physician cannot, as the Government\\n\\nsuggests, hold a clinical judgment under the eligibility framework that disregards\\n\\nthe patient’s underlying medical condition. See, e.g., 42 C.F.R. § 418.102(b)\\n 34\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 35 of 57\\n\\n\\n(identifying factors physicians must consider when arriving at clinical judgments\\n\\nregarding terminal illness, including “subjective and objective medical findings”\\n\\nregarding the patient’s condition). Such a clinical judgment would clearly be\\n\\nillegitimate under the law.\\n\\n The Government further warns that, under our reading of the framework, “if\\n\\na physician certifies a patient as terminally ill, CMS is required to reimburse the\\n\\nhospice care provider unless it can determine that no other reviewer of the patient’s\\n\\nmedical records could possibly conclude the patient was terminally ill.” But, as the\\n\\nGovernment elsewhere notes, CMS is statutorily prohibited from reimbursing\\n\\nproviders for services “which are not reasonable and necessary for the palliation or\\n\\nmanagement of terminal illness.” 42 U.S.C. § 1395y(a)(1)(C). See also 79 Fed\\n\\nReg. 50452, 50470 (Aug. 22, 2014) (explaining that CMS retains a well-\\n\\nestablished right to review claims for hospice reimbursement and to deny claims\\n\\nthat it does not consider to be “reasonable and necessary” under the statutory\\n\\nstandard). The Government’s argument that our reading of the eligibility\\n\\nframework would “tie CMS’s hands” and “requir[e] improper reimbursements” is\\n\\ncontrary to the plain design of the law.\\n\\n 2. Falsity in this case under the FCA\\n\\n Having identified the contours of the Medicare framework, it becomes clear\\n\\nthat there are two separate representations embedded in each claim for hospice\\n 35\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 36 of 57\\n\\n\\nreimbursement: a representation by a physician to AseraCare that the patient is\\n\\nterminally ill in the physician’s clinical judgment and a representation by\\n\\nAseraCare to Medicare that such clinical judgment has been obtained and that the\\n\\npatient is therefore eligible. As such, this case requires us to distinguish between\\n\\ntwo possible species of “falsity.” The first relates to the legitimacy of a\\n\\nphysician’s clinical judgment. The second relates to the legitimacy of AseraCare’s\\n\\nstatement that a clinical judgment has been properly made.\\n\\n Under the Government’s false-certification theory in this case, AseraCare\\n\\n“submitted documentation that falsely represented that certain Medicare recipients\\n\\nwere ‘terminally ill’” when, in the Government’s view, they were not. There is no\\n\\nallegation that AseraCare submitted claims that were not, in fact, based on a\\n\\nphysician’s properly formed clinical judgment, nor is there an allegation that\\n\\nAseraCare failed to abide by each component of the claim requirements. 9 The\\n\\nGovernment’s allegations focus solely on the accuracy of the physician’s clinical\\n\\njudgment regarding terminality. If, the theory goes, AseraCare represented to\\n\\nMedicare that a patient was “terminally ill” based on a physician’s clinical\\n\\n\\n\\n9\\n We might, for instance, envision a viable FCA suit alleging that a hospice provider failed to\\nobtain any clinical judgment at all, or obtained a clinical judgment from someone other than the\\npatient’s attending physician or the provider’s medical director, or fabricated the certification\\nitself. No such facts are alleged here.\\n\\n\\n 36\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 37 of 57\\n\\n\\njudgment, and the Government later persuades a jury that this clinical judgment\\n\\nwas wrong, then AseraCare’s representation was, in turn, “false.” This “falsity”\\n\\nopens the door to FCA liability. Thus, the Government’s FCA case hangs entirely\\n\\non the following question: When can a physician’s clinical judgment regarding a\\n\\npatient’s prognosis be deemed “false”?\\n\\n In light of our foregoing discussion, we concur with the district court’s post-\\n\\nverdict conclusion that “physicians applying their clinical judgment about a\\n\\npatient’s projected life expectancy could disagree, and neither physician [ ] be\\n\\nwrong.” Indeed, the Government’s own witness—Mary Jane Schultz, the former\\n\\nhead of Palmetto’s medical review department—conceded at trial that “two doctors\\n\\nusing their clinical judgment could come to different conclusions about a patient's\\n\\nprognosis and neither be right or wrong.” Nothing in the statutory or regulatory\\n\\nframework suggests that a clinical judgment regarding a patient’s prognosis is\\n\\ninvalid or illegitimate merely because an unaffiliated physician reviewing the\\n\\nrelevant records after the fact disagrees with that clinical judgment. Nor does the\\n\\nlaw suggest that a hospice provider has failed to comply with Medicare’s\\n\\nrequirements for hospice reimbursement if the only flaw in its claim is an absence\\n\\nof certitude that, in light of the relevant medical records, the patient will die within\\n\\nsix months. The legal framework signals, and CMS itself has acknowledged, that\\n\\nno such certitude can be expected of physicians in the practice of treating end-of-\\n 37\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 38 of 57\\n\\n\\nlife illness. All the legal framework asks is that physicians exercise their best\\n\\njudgment in light of the facts at hand and that they document their rationale.\\n\\n It follows that when a hospice provider submits a claim that certifies that a\\n\\npatient is terminally ill “based on the physician’s or medical director’s clinical\\n\\njudgment regarding the normal course of the individual’s illness,” 42 U.S.C.\\n\\n§ 1395f(7), 42 C.F.R. § 418.22(b), the claim cannot be “false”—and thus cannot\\n\\ntrigger FCA liability—if the underlying clinical judgment does not reflect an\\n\\nobjective falsehood.\\n\\n Objective falsehood can be shown in a variety of ways. Where, for instance,\\n\\na certifying physician fails to review a patient’s medical records or otherwise\\n\\nfamiliarize himself with the patient’s condition before asserting that the patient is\\n\\nterminal, his ill-formed “clinical judgment” reflects an objective falsehood. The\\n\\nsame is true where a plaintiff proves that a physician did not, in fact, subjectively\\n\\nbelieve that his patient was terminally ill at the time of certification. A claim may\\n\\nalso reflect an objective falsehood when expert evidence proves that no reasonable\\n\\nphysician could have concluded that a patient was terminally ill given the relevant\\n\\nmedical records. In each of these examples, the clinical judgment on which the\\n\\nclaim is based contains a flaw that can be demonstrated through verifiable facts.\\n\\n By contrast, a reasonable difference of opinion among physicians reviewing\\n\\nmedical documentation ex post is not sufficient on its own to suggest that those\\n 38\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 39 of 57\\n\\n\\njudgments—or any claims based on them—are false under the FCA. A properly\\n\\nformed and sincerely held clinical judgment is not untrue even if a different\\n\\nphysician later contends that the judgment is wrong. Cf. Omnicare, Inc. v.\\n\\nLaborers Dist. Council Const. Indus. Pension Fund, 135 S. Ct. 1318, 1327 (2015)\\n\\n(holding that “a sincere statement of pure opinion is not an ‘untrue statement of\\n\\nmaterial fact’” under the Securities Act of 1933, “regardless whether an investor\\n\\ncan ultimately prove the belief wrong”).\\n\\n Accordingly, in order to properly state a claim under the FCA in the context\\n\\nof hospice reimbursement, a plaintiff alleging that a patient was falsely certified for\\n\\nhospice care must identify facts and circumstances surrounding the patient’s\\n\\ncertification that are inconsistent with the proper exercise of a physician’s clinical\\n\\njudgment. Where no such facts or circumstances are shown, the FCA claim fails\\n\\nas a matter of law.\\n\\n In so holding, we agree with the district court’s conclusion that, in order to\\n\\nshow objective falsity as to a claim for hospice benefits, the Government must\\n\\nshow something more than the mere difference of reasonable opinion concerning\\n\\nthe prognosis of a patient’s likely longevity. 10 And although we appear to be the\\n\\n\\n\\n10\\n Several district courts within and outside the Eleventh Circuit have embraced comparable\\nreasoning in cases alleging FCA liability on the basis of clinical judgments of terminal illness.\\nSee, e.g., United States ex rel. Wall v. Vista Hospice Care, Inc., 2016 WL 3449833, at *17 (N.D.\\n\\n 39\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 40 of 57\\n\\n\\nfirst circuit court to consider the precise question at issue here, a number of\\n\\nopinions from our sister circuits lends support to our conclusion that the\\n\\nGovernment must show an objective falsity. 11\\n\\n\\n\\n\\nTex. June 20, 2016) (“Because a physician must use his or her clinical judgment to determine\\nhospice eligibility, an FCA claim about the exercise of that judgment must be predicated on the\\npresence of an objectively verifiable fact at odds with the exercise of that judgment, not a matter\\nof questioning subjective clinical analysis.”); United States ex rel. Fowler v. Evercare Hospice,\\nInc., 2015 WL 5568614, at *9 (D. Colo. Sept. 21, 2015) (observing that, if Government’s\\ncomplaint had been “based entirely on disagreements with [the provider’s] certifying\\nphysicians,” the complaint “would be insufficient to state a claim”); United States ex rel.\\nGeschrey v. Generations Healthcare, LLC, 922 F. Supp. 2d 695, 703 (N.D. Ill. 2012) (dismissing\\nFCA claims because “[r]elators have not alleged facts demonstrating that the certifying physician\\ndid not or could not have believed, based on his or her clinical judgment, that the patient was\\neligible for hospice care”). But see Druding v. Care Alternatives, Inc., 164 F. Supp. 3d 621, 623\\n(D.N.J. 2016) (holding that where plaintiffs alleged that patients were ineligible for hospice\\nbecause they did not meet LCD criteria, claims were “legally false . . . because the claim[s] did\\nnot include sufficient clinical facts in the patient’s medical records to justify a terminal\\nprognosis”).\\n11\\n See United States ex rel. Yannacopoulos v. General Dynamics, 652 F.3d 818, 836 (7th Cir.\\n2011) (stating that “[a] statement may be deemed ‘false’ for purposes of the False Claims Act\\nonly if the statement presents ‘an objective falsehood’”) (citing United States ex rel. Wilson v.\\nKellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008)); United States ex rel. Loughren\\nv. Unum Grp., 613 F.3d 300, 310 (1st Cir. 2010), (explaining that an opinion may qualify as a\\nfalse statement for purposes of the FCA where the speaker “knows facts ‘which would preclude\\nsuch an opinion’”) (quoting United States ex rel. Siewick v. Jamieson Science and Engineering,\\nInc., 214 F.3d 1372, 1378 (D.C. Cir. 2000)); Wilson, 525 F.3d at 376–77 (holding that “[t]o\\nsatisfy [the] first element of an FCA claim, the statement or conduct alleged must represent an\\nobjective falsehood” and “imprecise statements or differences in interpretation growing out of a\\ndisputed legal question are [ ] not false under the FCA”) (quotation omitted); United States ex\\nrel. Burlbaw v. Orenduff, 548 F.3d 931, 959 (10th Cir. 2008) (“At a minimum the FCA requires\\nproof of an objective falsehood.”); Harrison v. Westinghouse Savannah River Co., 176 F.3d 776,\\n792 (4th Cir. 1999) (noting that opinions or estimates can be “false” under the FCA if their\\nspeaker knows they are not supported by the facts); Hooper v. Lockheed Martin Corp., 688 F.3d\\n1037, 1047–49 (9th Cir. 2012) (same). Cf. Omnicare, Inc. v. Laborers Dist. Council Const.\\nIndus. Pension Fund, 135 S. Ct. 1318, 1323, 1326–27 (2015) (holding in the context of securities\\nfraud statutes that a statement of opinion can be “false” if the opinion did not reflect the\\nspeaker’s actual belief at the time it was given).\\n\\n 40\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 41 of 57\\n\\n\\n The Government urges that the standard we adopt today improperly\\n\\n“usurp[s] the role of the jury” by precluding the jury from determining, based on\\n\\nexpert testimony, the accuracy of the clinical judgments at issue. In support of this\\n\\ncontention, the Government relies heavily on this Court’s reasoning in United\\n\\nStates ex rel. Walker v. R&F Properties of Lake County, Inc., 433 F.3d 1349 (11th\\n\\nCir. 2005). But Walker is clearly distinguishable and does not control our analysis.\\n\\n In Walker, an FCA relator contended that her employer, a medical-clinic\\n\\noperator, billed Medicare for services rendered by non-physicians as if those\\n\\nservices had been rendered “incident to the service of a physician,” as the relevant\\n\\nstatute required. See id. at 1353. In reality, the relator alleged, services had been\\n\\nprovided by nurse practitioners or physician assistants without any physician\\n\\ninvolvement. Id. The defendant-clinic did not dispute that physicians were not\\n\\npresent in the clinic when services were rendered. Id. at 1354. It argued instead\\n\\nthat these claims could not have been false as a matter of law because the meaning\\n\\nof “incident to the service of a physician” was “vague and subject to reasonable\\n\\ninterpretations other than that championed by Walker.” Id. Specifically, the clinic\\n\\nargued that it interpreted “incident to the service of a physician” to cover services\\n\\nthat were rendered by non-physicians as long as a physician was available by pager\\n\\nor telephone, even if not actually physically present in the office. Id. The district\\n\\n\\n\\n 41\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 42 of 57\\n\\n\\ncourt agreed, finding the statute ambiguous and defendant’s interpretation of the\\n\\nstatute reasonable. Id.\\n\\n This Court reversed. Walker, 433 F.3d at 1356. The question presented was\\n\\nwhether a claim based on a reasonable interpretation of an ambiguous statutory\\n\\nterm could never be deemed “false,” or whether instead the meaning of the\\n\\nambiguous term—and the corresponding falsity of the claims made thereunder—\\n\\ncould potentially pose factual questions that should be put to a factfinder. Id.\\n\\nGiven the particular facts of the case before us, our Court adopted the latter\\n\\napproach. Specifically, the relator presented evidence from the Medicare Carrier’s\\n\\nmanual, Medicare bulletins, and seminar programs to “support a finding that, in the\\n\\nMedicare community, the language of the statute was understood to mean that a\\n\\nphysician had to be physically present in the office suite” in order to justify\\n\\nreimbursement for the medical service provided by a non-physician. Id. at 1356–\\n\\n57. We concluded that this evidence created a jury question as to both whether the\\n\\nMedicare regulation required more physician involvement with a patient than the\\n\\ndefendant clinic had provided and whether the defendant knew of this requirement.\\n\\nId. at 1358.\\n\\n In Walker, the eligibility criterion at issue was subject to multiple\\n\\ninterpretations because its language was ambiguous, yet ultimately only one of the\\n\\ntwo possible interpretations could be deemed correct. By contrast, the key\\n 42\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 43 of 57\\n\\n\\neligibility criterion at issue here—“terminally ill”—presents, by design, a question\\n\\nof debatable clinical judgment that may not, in all circumstances, lend itself to just\\n\\none determination as to the proper exercise of that judgment. As the district court\\n\\nnoted below, asking the jury to decide whether medical records supported a finding\\n\\nof “terminal illness” put the jury in the position of evaluating, and second-\\n\\nguessing, the clinical judgment of the certifying physician. This is not the role the\\n\\nfactfinder was playing in Walker; indeed, it is a role requiring medical knowledge\\n\\nand expertise that Congress has clearly reserved for physicians in the hospice-\\n\\nbenefit context. Walker therefore does not compel the conclusion that eligibility\\n\\nrequirements that hinge on clinical judgment present jury questions simply because\\n\\nthey are susceptible to differing opinions, each of which could be reasonable.\\n\\n The Government has also filed supplemental authority, citing to out-of-\\n\\ncircuit appellate cases that it says establish that a mere difference of medical\\n\\nopinion can be sufficient to show that a statement is false. We find these cases\\n\\ndistinguishable. In United States v. Paulus, 894 F.3d 267 (6th Cir. 2018), the\\n\\nphysician-defendant had been convicted of healthcare fraud based on his\\n\\nperformance of allegedly unnecessary coronary stent procedures. In arguing for\\n\\nreversal of his conviction, the defendant contended that he based his decision to\\n\\nperform the procedures on his interpretation of angiogram tests showing a high\\n\\ndegree of blockage in the patients’ arteries, and thus his medical judgment on this\\n 43\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 44 of 57\\n\\n\\npoint represented merely an opinion that could neither be truthful nor false. The\\n\\nGovernment contended that, to the contrary, the defendant had lied when he said\\n\\nthat he interpreted the angiograms as showing a level of coronary blockage that\\n\\nwould warrant inserting a stent into the heart, and it offered substantial expert\\n\\ntestimony disputing that the level of blockage shown on the angiogram test was at\\n\\nthe level the defendant asserted it was.\\n\\n The Sixth Circuit12 agreed with the defendant that “[o]rdinarily, facts are the\\n\\nonly item that fits in [the false statement] category; opinions—when given\\n\\nhonestly—are almost never false . . . .There is no such thing as a false idea.” Id. at\\n\\n275 (citations and internal quotation marks omitted). Nevertheless, the court\\n\\ncontinued, opinions have “never been completely insulated from scrutiny. At the\\n\\nvery least, opinions may trigger liability for fraud when they are not honestly held\\n\\nby their maker, or when the speaker knows of facts that are fundamentally\\n\\nincompatible with his opinion.” Id. The court then cited with apparent approval\\n\\nthe district court opinion in the present case for the proposition that “certain good-\\n\\n\\n\\n\\n12\\n The Paulus court indicated its intention to clarify the standard underlying its earlier decision\\nin United States v. Persaud, 866 F.3d 371 (6th Cir. 2017), which the Government has also cited\\nin the present case. Paulus, 894 F.3d at 275.\\n\\n\\n 44\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 45 of 57\\n\\n\\nfaith medical diagnoses by a doctor cannot be false.” 13 Id. In the case before it,\\n\\nhowever, the Paulus court noted that “coronary artery blockage actually exists as\\n\\nan aspect of reality,” meaning that an assertion about the degree of blockage can be\\n\\nobjectively true or false. Id. at 276 (quotation marks omitted). And it concluded\\n\\nthat the Government’s expert testimony was sufficient to support an inference that\\n\\nthe defendant had lied when he reported readings of the angiograms that the\\n\\nexperts said were simply not true: “[W]e think it is clear that Paulus was convicted\\n\\nfor misrepresenting facts, not giving opinions.” Id.\\n\\n Moreover, whereas in the present case the Government’s expert witness\\n\\ndeclined to conclude that Asercare’s physicians had lied about their clinical\\n\\njudgment or even that their judgments were unreasonable or wrong 14—as opposed\\n\\nto just different from what the Government’s expert opined—in Paulus, it appears\\n\\nclear that the Government’s experts there were not so charitable. The Paulus court\\n\\nnoted that the Government had claimed that “Paulus repeatedly and systematically\\n\\nsaw one thing on the angiogram and consciously wrote down another, and then\\n\\n\\n\\n13\\n The court stated, “see also United States v. AseraCare, Inc., 176 F. Supp. 3d 1282 (N.D. Ala.\\n2016) (holding that certain good-faith medical diagnoses by a doctor cannot be false.”) Paulus,\\n894 F.3d at 275.\\n14\\n As noted supra, the former head of the Palmetto medical review team, called as a Government\\nwitness, also conceded at trial that “two doctors using their clinical judgment could come to\\ndifferent conclusions about a patient's prognosis and neither be right or wrong.”\\n\\n\\n 45\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 46 of 57\\n\\n\\nused that misinformation to perform and bill unnecessary procedures,” and it\\n\\nexplained that “[h]owever difficult it might be for a cardiology expert to prove that\\n\\nhis colleague was lying about what he saw on a scan,” it was up to the jury to\\n\\ndecide the reliability of that testimony. Id. at 267–77. In short, the Government’s\\n\\nexpert testimony in Paulus appeared to suggest that no reasonable doctor could\\n\\ninterpret the scan as had Paulus and that Paulus was actually lying. Thus, Paulus is\\n\\nnot supportive of the Government’s contentions here.15\\n\\n\\n\\n15\\n The Government here also cites United States ex rel. Polukoff v. St. Mark’s Hospital, 895\\nF.3d 730 (10th Cir. 2018), an FCA case in which the district court had granted the defendant’s\\nmotion to dismiss on the ground that his medical judgment about the need for cardiac PFO\\nclosure procedures to prevent future strokes in his patients was an opinion that was not subject to\\nbeing deemed true or false. The Tenth Circuit reversed, found a plausible allegation of falsity,\\nand directed that the case proceed to discovery. The circuit court noted that the Government had\\nalleged that the applicable Medicare statute authorized reimbursement only when the he PFO\\nprocedure was reasonable and necessary for the treatment of an illness; that there is agreement in\\nthe medical community that a PFO closure is not medically necessary except where there is a\\nconfirmed diagnosis of a recurrent stroke; that the applicable guidelines allow for consideration\\nof the procedure only when the patient has had two or more strokes and that the guidelines do not\\n“contemplate the potential for PFO closures” if the patient has not had a prior stroke; that the\\ndefendant claimed to believe that the procedure should be performed prophylactically to cure\\nmigraine headaches or to prevent strokes even if the patient had never before had a stroke; and,\\nknowing that Medicare would not pay on that basis, the defendant falsely represented that the\\nprocedure was being performed based on the indications set forth in the guidelines. Id. at 736,\\n737. In addition, a fellow physician alleged that he had witnessed the defendant perform an\\nunnecessary procedure and actually create the problem the surgery was intended to remedy by\\npuncturing intact septa in the patients. Id. at 738.\\n\\nObviously, the above facts are quite different from those alleged in this case. It is true that the\\nTenth Circuit opinion held that regardless of the physician’s opinion to the contrary, he will be\\ndeemed to have made a false statement when claiming reimbursement if the medical procedure is\\ndetermined to have not been reasonable or necessary. “We thus hold that a doctor’s certification\\nto the government that a procedure is ‘reasonable and necessary’ is ‘false’ under the FCA if the\\nprocedure was not reasonable and necessary under the government’s definition of the phrase.”\\n\\n 46\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 47 of 57\\n\\n\\n The Government expresses concern that a requirement of objective\\n\\nfalsehood will produce a troubling under-inclusion problem: that is, by holding\\n\\nthat an FCA claim fails as a matter of law if the plaintiff proves nothing more than\\n\\na reasonable difference of opinion as to the patient’s prognosis, hospice providers\\n\\nwith sloppy or improper admission practices may evade FCA liability so long as\\n\\nthey can argue after the fact that their physicians’ clinical judgments were\\n\\njustifiable. That may well be. To be sure, it will likely prove more challenging for\\n\\nan FCA plaintiff to present evidence of an objective falsehood than to find an\\n\\nexpert witness willing to testify to a contrasting clinical judgment regarding cold\\n\\nmedical records.\\n\\n But if this is a problem, it is one for Congress or CMS to solve. In deciding\\n\\nhow to craft the hospice eligibility requirements, Congress and CMS could have\\n\\nimposed a more rigid set of criteria for eligibility determinations that would have\\n\\nminimized the role of clinical judgment. Instead, they were careful to place the\\n\\nphysician’s clinical judgment at the center of the inquiry. Indeed, CMS has\\n\\nconsidered and expressly declined to impose defined criteria that would govern the\\n\\nphysician’s exercise of judgment. See 73 Fed. Reg. 32088, 32138 (June 5, 2008).\\n\\n\\n\\nId. at 742. As set out in text, however, the hospice-benefit provision at issue here, by design,\\nlooks to whether a physician has based a recommendation for hospice treatment on a genuinely-\\nheld clinical opinion as to a patient’s likely longevity.\\n\\n 47\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 48 of 57\\n\\n\\n In any event, absent a showing of an objective and knowing falsehood, the\\n\\nFCA is an inappropriate instrument to serve as the Government’s primary line of\\n\\ndefense against questionable claims for reimbursement of hospice benefits. For the\\n\\nabove reasons, we agree that the district court’s jury instruction concerning falsity\\n\\nwas lacking and that a new trial was warranted to allow the giving of a more\\n\\ncomplete charge: specifically, a charge that would convey that the mere difference\\n\\nof reasonable opinion between physicians, without more, 16 as to the prognosis for a\\n\\npatient seeking hospice benefits does not constitute an objective falsehood. We\\n\\ntherefore AFFIRM the district court’s grant of a new trial.\\n\\n B. Grant of Summary Judgment\\n\\n Deciding that the district court acted correctly in determining that a new trial\\n\\nwas warranted—with a revised instruction to the jury concerning falsity—does not\\n\\nend our review of this case. Instead, as noted in the procedural discussion above,\\n\\nthe district court went further and, after granting a new trial, it then sua sponte\\n\\ngranted summary judgment to AseraCare. The court reasoned as follows. Given\\n\\nits new position on the standard for determining falsity—that falsity cannot be\\n\\nestablished based merely on a reasonable disagreement between experts as to\\n\\n\\n\\n16\\n Should there be another trial on this matter, we leave to the district court and the parties the\\ntask of fleshing out just what that “more” needs to include.\\n\\n\\n 48\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 49 of 57\\n\\n\\nwhether clinical records in a patient’s file warranted a prognosis of a terminal\\n\\nillness that would likely result in the patient’s death within six months—the district\\n\\ncourt indicated that it would hear from the Government whether the court record\\n\\ncontained any other evidence sufficient to create a jury question as to whether\\n\\nAseraCare had made an objectively false representation when claiming\\n\\nreimbursement for hospice benefits it had provided. Following that response and\\n\\nconcluding that the Government’s evidence of falsity consisted only of Dr. Liao’s\\n\\ntestimony indicating his disagreement with the prognosis arrived at by AseraCare\\n\\nfor most of the patient files he reviewed, the district court found that the\\n\\nGovernment’s evidence of falsity was insufficient to allow it to proceed further.\\n\\nFor that reason, the court granted summary judgment.\\n\\n Leaving aside the question whether the substance of an opinion, by itself,\\n\\ncan ever be deemed to constitute an objective falsity, the parties agree that an\\n\\nopinion can be considered objectively false if the speaker does not actually hold\\n\\nthat opinion. See Omnicare, Inc. v. Laborers Dist. Council Const. Indus. Pension\\n\\nFund, 135 S. Ct. 1318, 1323, 1326–27 (2015) (holding in the context of securities\\n\\nfraud statutes that a statement of opinion can be “false” if the opinion did not\\n\\nreflect the speaker’s actual belief at the time it was given). Further, in examining\\n\\nwhether a physician’s clinical judgment was truly communicated, the latter must\\n\\nfirst have actually exercised such judgment. If it can be shown that the physician\\n 49\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 50 of 57\\n\\n\\nnever considered the underlying records supporting the prognosis at issue, but\\n\\ninstead rubber-stamped whatever file was put in front of him, then the physician\\n\\nhas offered no clinical judgment. Moreover, an opinion can enter falsifiable\\n\\nterritory when it is based on information that the physician knew, or had reason to\\n\\nknow, was incorrect. Finally, if no reasonable physician would think that a patient\\n\\nhad a terminal illness based on the evidence before that physician, then falsity can\\n\\nbe inferred, as well as the existence of a knowing violation.\\n\\n With the above thoughts in mind, the Government argues that the district\\n\\ncourt took too constricted a view of the evidence upon which a determination of\\n\\nfalsity could be made by a jury when it refused to consider other evidence from the\\n\\nfirst phase of the trial that the Government asserts tended to show knowledge of\\n\\nthe falsity of the claim, as well as evidence that the Government intended to\\n\\npresent in the second phase of the trial to further show AseraCare’s alleged\\n\\nawareness 17 that it was submitting claims that did not reflect a physician’s good\\n\\nfaith clinical judgment and prognosis for each patient. In its opposition to the sua\\n\\nsponte grant of summary judgment, the Government stated:\\n\\n\\n17\\n For purposes of the FCA, “the terms ‘knowing’ and ‘knowingly’ (A) mean that a person, with\\nrespect to information—(i) has actual knowledge of the information; (ii) acts in deliberate\\nignorance of the truth or falsity of the information; or (iii) acts in in reckless disregard of the\\ntruth or falsity of the information, and (B) no proof of specific intent to defraud is required.” 31\\nU.S.C. § 3729(b).\\n\\n\\n 50\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 51 of 57\\n\\n\\n It is indefensible for the Court to grant summary judgment on the\\n grounds that this case is just about a good faith disagreement between\\n experts—and that the United States failed to present evidence that\\n AseraCare knew or recklessly disregarded that its claims were false—\\n when the Court bifurcated the trial and expressly excluded from Phase\\n One any evidence of AseraCare’s knowledge of falsity.\\n\\nWe agree with the Government that before granting summary judgment, the\\n\\ndistrict court should have considered all the evidence, both in the trial record and\\n\\nthe summary judgment record, to determine whether a triable issue existed\\n\\nregarding falsity. Here is why we reach that conclusion.\\n\\n The Government had been prepared to introduce evidence to show\\n\\nAseraCare’s knowledge at trial, but was prevented from doing so by the district\\n\\ncourt’s decision, over the Government’s strong objections, to bifurcate the trial and\\n\\npreclude introduction of any evidence showing knowledge of falsity in Phase I.\\n\\nThe Government did, however, introduce evidence in that first phase that seems to\\n\\noffer some potential basis for inferring knowledge. Specifically, nine witnesses,\\n\\nwhose testimony was purportedly connected in time and location to the patients at\\n\\nissue, testified that AseraCare had a deliberate practice of not giving physicians\\n\\nrelevant, accurate, and complete information about patients whose certifications for\\n\\nhospice the doctors were being asked to sign. For example, one former director of\\n\\nclinical services in Decatur, Alabama, testified that when she declined to admit\\n\\nineligible patients to hospice, she was instructed to go back and find whatever she\\n\\n 51\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 52 of 57\\n\\n\\nneeded to admit the patient. Further, she typically did not provide the certifying\\n\\nphysician with any clinical information, but usually just gave him a stack of papers\\n\\nto sign. Indeed, each of the nine former-employee witnesses reiterated these\\n\\nthemes in their testimony. In large part, because the Government had not\\n\\ndenominated this evidence as proof of falsity during this first phase—but instead as\\n\\nevidence of context—the district court refused to consider it as evidence of falsity\\n\\nin this post-verdict summary judgment phase.\\n\\n The Government also intended to offer at the second phase evidence from\\n\\nAseraCare’s internal and external auditors criticizing the company because the\\n\\ncertifying medical directors were not adequately involved in making initial\\n\\neligibility determinations and did not consistently receive medical information\\n\\nprior to the initial certification. In addition to the testimony of other former\\n\\nemployees, the Government also planned to offer testimony from a former\\n\\nAseraCare physician that employees did not defer to his clinical judgment that\\n\\ncertain patients were unentitled to hospice benefits, but instead proceeded to file\\n\\nthe claims. The district court declined to factor the above evidence into its\\n\\nevaluation of whether a jury question still remained concerning AseraCare’s\\n\\nknowledge that it was submitting claims that did not warrant the reimbursement of\\n\\nhospice benefits.\\n\\n\\n\\n 52\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 53 of 57\\n\\n\\n The district court’s refusal to consider any of the above-described additional\\n\\nevidence on the question of falsity was largely based on the Government’s\\n\\nresponse to AseraCare’s discovery interrogatories inquiring what evidence the\\n\\nGovernment would offer on that issue. The district court emphasized that the\\n\\nGovernment had “painted itself into a corner by failing to disclose during\\n\\ndiscovery that it would use anything other than the testimony of Dr. Liao and\\n\\nmedical records to prove the falsity of the claims.”\\n\\n It is true that the Government denominated only the Liao testimony as\\n\\nevidence of falsity during the discovery period. But, in fairness to the\\n\\nGovernment, it disclosed all the above evidence in question during discovery,\\n\\nincluding the evidence that the district court declined to consider for post-verdict\\n\\nsummary judgment purposes. At the time of disclosure, the Government had no\\n\\nidea that the district court would later order the bifurcation of trial between falsity\\n\\nand knowledge phases, and it clearly assumed that all of its evidence would be\\n\\nheard by the jury in one proceeding, with no need to so starkly pigeon-hole the\\n\\ncategory into which a given piece of evidence might fit. As the Government noted\\n\\nin its opposition to bifurcation, with no contradiction by AseraCare, the elements\\n\\nof an FCA liability claim had “never been before been bifurcated by a federal\\n\\ndistrict court.” Nor had the Government ever anticipated such a decision, because,\\n\\naccording to it, such an order was “extraordinary, requiring the United States to\\n 53\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 54 of 57\\n\\n\\njump over an arbitrary hurdle that is without precedent . . . [because] [t]he elements\\n\\nof ‘falsity’ and ‘knowledge of falsity’ are not so distinct and separable that they\\n\\nmay be tried separately without injustice.”\\n\\n Moreover, the district court had rejected AseraCare’s initial motion for\\n\\nsummary judgment based on the latter’s argument that the mere disagreement of\\n\\nexperts is insufficient to imply falsity. At the time of trial, the court had already\\n\\ndeclined to apply this “reasonable physician” standard to the falsity analysis,\\n\\ndespite granting AseraCare’s § 1292(b) motion for review. As such, the\\n\\nGovernment’s failure to present its case in a manner consistent with such a\\n\\nstandard is understandable. Moreover, the court declined to give the instructions\\n\\nrequested by AseraCare to that effect and instead gave only the charge requested\\n\\nby the Government: “Claims to Medicare may be false if the provider seeks\\n\\npayment, or reimbursement, for health care that is not reimbursable. For a hospice\\n\\nprovider’s claims to Medicare to be reimbursable, the patient must be eligible for\\n\\nthe Medicare hospice benefit.”\\n\\n Accordingly, the Government, which had prepared and presented its case\\n\\nbased on all the above information, was never alerted to the possibility that the\\n\\nconceptual underpinnings of its case would shift so dramatically once it had won a\\n\\njury verdict on that theory. We emphasize that we do not criticize the district court\\n\\nfor its post-verdict change of mind about the appropriate standard for proving\\n 54\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 55 of 57\\n\\n\\nfalsity. To the contrary, this district court judge was diligent, conscientious, and\\n\\nthoughtful throughout the long and complex pre-trial proceedings and the eight-\\n\\nweek trial whose verdict she ultimately vacated. Given that expenditure of time\\n\\nand energy, it is commendable that the district court would consider starting over\\n\\nonce she became convinced that she had made a legal error.\\n\\n Nonetheless, under all these unusual circumstances, it is only fair that the\\n\\nGovernment be allowed to have summary judgment considered based on all the\\n\\nevidence presented at both the summary judgment and trial stages, and we direct\\n\\nthat this occur. When the goalpost gets moved in the final seconds of a game, the\\n\\nteam with the ball should, at the least, have one more opportunity to punch it into\\n\\nthe endzone.\\n\\n Having given the Government the green light to once again try to persuade\\n\\nthe district court that a triable issue exists on both falsity and knowledge, we\\n\\nemphasize that we do not know that this effort will succeed. For sure, to the extent\\n\\nthat a reasonable jury might credit the Government’s proffered evidence regarding\\n\\nAseraCare’s practices, that evidence suggests that AseraCare’s certification\\n\\nprocedures were seriously flawed. As noted, a former Director of Clinical Services\\n\\ntestified that one physician she worked with was in the habit of signing\\n\\ncertifications before reviewing any medical documentation whatsoever; clinical\\n\\nstaff typically “just gave him . . . a stack of papers to sign, [and] he just signed the\\n 55\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 56 of 57\\n\\n\\npapers.” Another former employee testified that signing certifications had become\\n\\nso rote for one physician that he “would nod off” while signing. This testimony\\n\\ncertainly raises questions regarding AseraCare’s certification process writ large.\\n\\nBut crucially, on remand the Government must be able to link this evidence of\\n\\nimproper certification practices to the specific 123 claims at issue in its case. Such\\n\\nlinkage is necessary to demonstrate both falsehood and knowledge. 18 See\\n\\nUrquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1045 (11th Cir. 2015) (“disregard\\n\\nof government regulations or failure to maintain proper internal procedures” are\\n\\nnot sufficient to demonstrate FCA violation); Carrel v. AIDS Healthcare\\n\\nFoundation, Inc., 898 F.3d 1267, 1277–78 (11th Cir. 2018) (a relator cannot prove\\n\\nthat an actual false claim was filed based only on a showing of general practices\\n\\nuntethered to that claim).\\n\\n\\n18\\n Alternatively, the Government could meet its burden under the falsity standard now adopted\\nby the district court, and endorsed by this Court, if it could establish through expert testimony\\nthat no reasonable physician reviewing the medical records at issue could have concluded that a\\nparticular patient was terminally ill. The Court, however, is unaware that any such evidence\\nexists. Indeed, as noted, Mary Jane Schultz, the former head of Palmetto’s medical review\\ndepartment, testified that “two doctors using their clinical judgment could come to different\\nconclusions about a patient's prognosis and neither be right or wrong.” Also, as noted, Dr. Liao\\nhimself changed his opinion concerning the eligibility of certain patients over the course of the\\nproceeding but testified at trial that both sets of opinions remained “accurate to a reasonable\\ndegree of certainty.” To explain these reversals, Dr. Liao stated that he “was not the same\\nphysician in 2013 as [he] was in 2010.” As the district court observed, if Dr. Liao can form\\ncontradictory opinions based on the same medical records and yet claim not to have been wrong\\non either occasion, then it is difficult to explain how his difference of opinion with AseraCare’s\\nphysicians concerning other patients would demonstrate that no reasonable physician could agree\\nwith AseraCare, absent some additional evidence to warrant that inference.\\n\\n 56\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 57 of 57\\n\\n\\n For the above reasons, we VACATE the district court’s post-verdict grant of\\n\\nsummary judgment to AseraCare and REMAND for the court to reconsider that\\n\\nmatter based on the entirety of the evidence, not just that evidence presented at trial\\n\\nnor just the evidence denominated as being offered to prove falsity.\\n\\nV. CONCLUSION\\n\\n For the reasons explained above, we AFFIRM the district court’s grant of a\\n\\nnew trial. We, however, VACATE the post-verdict grant of summary judgment to\\n\\nAseraCare and REMAND for the district court to reconsider that decision in light\\n\\nof all the relevant evidence proffered by the Government.\\n\\n\\n\\n\\n 57\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4436582/\", \"author_raw\": \"JULIE CARNES, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"ROSENBAUM"},"judge2":{"kind":"string","value":"JULIE CARNES"},"judge3":{"kind":"string","value":"SCHLESINGER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"ROSENBAUM\": \", Circuit\", \"JULIE CARNES\": \", Circuit\", \"SCHLESINGER\": \", District\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4659329/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Aseracare, Inc.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-09-09\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 16-13004 Date Filed: 09/09/2019 Page: 1 of 57\n\n\n [PUBLISH]\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 16-13004\n ________________________\n\n D.C. Docket No. 2:12-cv-00245-KOB\n\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellant,\n\nversus\n\n\nASERACARE, INC.,\nGGNSC ADMINISTRATIVE SERVICES,\nd.b.a. Golden Living,\nf.k.a. Beverly Enterprises, Inc.,\nHOSPICE PREFERRED CHOICE, INC.,\nHOSPICE OF EASTERN CAROLINA, INC.,\n\n Defendants - Appellees.\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 2 of 57\n\n\n ________________________\n\n Appeal from the United States District Court\n for the Northern District of Alabama\n ________________________\n\n (September 9, 2019)\n\nBefore ROSENBAUM and JULIE CARNES, Circuit Judges, and\nSCHLESINGER,∗ District Judge.\n\nJULIE CARNES, Circuit Judge:\n\n This case requires us to consider the circumstances under which a claim for\n\nhospice treatment under Medicare may be deemed “false” for purposes of the\n\nfederal False Claims Act. Defendants comprise a network of hospice facilities that\n\nroutinely bill Medicare for end-of-life care provided to elderly patients. In the\n\nunderlying civil suit, the Government alleged that Defendants had certified patients\n\nas eligible for Medicare’s hospice benefit, and billed Medicare accordingly, on the\n\nbasis of erroneous clinical judgments that those patients were terminally ill. Based\n\non the opinion of its expert witness, the Government contends that the patients at\n\nissue were not, in fact, terminally ill at the time of certification, meaning that\n\nAseraCare’s claims to the contrary were false under the False Claims Act.\n\n\n\n\n∗ The Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of\nFlorida, sitting by designation.\n\n\n 2\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 3 of 57\n\n\n As the case proceeded through discovery and a partial trial on the merits, the\n\ndistrict court confronted the following question: Can a medical provider’s clinical\n\njudgment that a patient is terminally ill be deemed false based merely on the\n\nexistence of a reasonable difference of opinion between experts as to the accuracy\n\nof that prognosis? The district court ultimately answered this question in the\n\nnegative and therefore granted summary judgment to AseraCare on the issue of\n\nfalsity.\n\n Upon careful review of the record and the relevant law, and with the benefit\n\nof oral argument, we concur with the district court’s ultimate determination that a\n\nclinical judgment of terminal illness warranting hospice benefits under Medicare\n\ncannot be deemed false, for purposes of the False Claims Act, when there is only a\n\nreasonable disagreement between medical experts as to the accuracy of that\n\nconclusion, with no other evidence to prove the falsity of the assessment. We do,\n\nhowever, think that the Government should have been allowed to rely on the entire\n\nrecord, not just the trial record, in making its case that disputed issues of fact,\n\nbeyond just the difference of opinion between experts, existed sufficient to warrant\n\ndenial of the district court’s post-verdict sua sponte reconsideration of summary\n\njudgment on the falsity question. We therefore affirm in part and remand in part.\n\n\n\n\n 3\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 4 of 57\n\n\nI. BACKGROUND 1\n\n Each year, more than a million Americans make the difficult decision to\n\nforgo curative care and turn instead to end-of-life hospice care, which is designed\n\nto relieve the pain and symptoms associated with terminal illness. See 79 Fed.\n\nReg. 50452, 50454–55 (Aug. 22, 2014). The federal government’s Medicare\n\nprogram makes such care affordable for a significant number of terminally ill\n\nindividuals. Defendants, collectively referred to as AseraCare, operate\n\napproximately sixty hospice facilities across nineteen states and admit around\n\n10,000 patients each year. Most of AseraCare’s patients are enrolled in Medicare.\n\nIn fact, from 2007 to 2012, Medicare payments composed approximately ninety-\n\nfive percent of AseraCare’s revenues. As such, AseraCare routinely prepares and\n\nsubmits claims for reimbursement under Medicare.\n\n This case began when three former AseraCare employees alleged that\n\nAseraCare had a practice of knowingly submitting unsubstantiated Medicare\n\nclaims in violation of the federal False Claims Act. We begin by setting out the\n\nrequirements hospice providers like AseraCare must meet in order to be entitled to\n\n\n\n\n1\n We derive the pertinent facts from the parties’ submissions, the summary judgment record, and\nthe trial testimony presented in the proceeding below.\n\n\n 4\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 5 of 57\n\n\nhospice reimbursement and identifying the tools the Government uses to police\n\ncompliance with these requirements.\n\n A. The Medicare Hospice Benefit\n\n In order for a hospice claim to be eligible for Medicare reimbursement, the\n\npatient’s attending physician, if there is one, and the medical director of the\n\nhospice provider must “each certify in writing at the beginning of [each] period,\n\nthat the individual is terminally ill . . . based on the physician’s or medical\n\ndirector’s clinical judgment regarding the normal course of the individual’s\n\nillness.” 42 U.S.C. § 1395f(7)(A). “Terminally ill” means that the individual “has\n\na medical prognosis that the individual’s life expectancy is 6 months or less.” 42\n\nU.S.C. § 1395x(dd)(3)(A). Under the statute’s implementing regulations, a claim\n\nfor hospice reimbursement must conform to several requirements in order to be\n\npayable. Most notably for purposes of this appeal, the certification must be\n\naccompanied by “[c]linical information and other documentation that support the\n\nmedical prognosis,” and such support “must be filed in the medical record with the\n\nwritten certification.” 42 C.F.R. § 418.22(b)(2).\n\n An initial certification conforming to these requirements is valid for a period\n\nof ninety days. 42 U.S.C. § 1395f(7)(A). The patient must be recertified in a\n\nsimilar manner for each additional sixty- or ninety-day period during which he or\n\nshe remains in hospice. Id. While a life-expectancy prognosis of six months or\n 5\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 6 of 57\n\n\nless is a necessary condition for reimbursement, regulators recognize that\n\n“[p]redicting life expectancy is not an exact science.” 75 Fed. Reg. 70372, 70488\n\n(Nov. 17, 2010). Accordingly, the Medicare framework does not preclude\n\nreimbursement for periods of hospice care that extend beyond six months, as long\n\nas the patient’s eligibility is continually recertified. This framework also\n\nrecognizes that, in some cases, patients with an initial prognosis of terminality can\n\nimprove over time, and it allows such patients to exit hospice without losing their\n\nright to Medicare coverage to treat illness. Id. Thus, there is no statutory limit to\n\nthe number of periods for which a patient may be properly certified. 42 U.S.C.\n\n§ 1395d(d)(1) (establishing that hospice providers may collect reimbursement for\n\nan unlimited number of recertification periods).\n\n The Medicare program is overseen by the Centers for Medicare and\n\nMedicaid Services (“CMS”), a division of the Department of Health and Human\n\nServices. CMS operates locally through so-called Medicare Administrative\n\nContractors (“MACs”), which process claims from healthcare providers and make\n\npayment for eligible services. A majority of AseraCare’s Medicare claims are\n\nprocessed by a MAC called Palmetto GBA (“Palmetto”), which operates in the\n\nsoutheast United States.\n\n In preparing its claims for hospice reimbursement, AseraCare employs\n\ninterdisciplinary teams of skilled staff—including physicians, nurses,\n 6\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 7 of 57\n\n\npsychologists, social workers, and chaplains—that render services directly to\n\npatients and collectively make eligibility determinations. To guide this review,\n\nAseraCare professionals rely in part on documents called Local Coverage\n\nDeterminations (“LCDs”), which are issued by Palmetto’s medical directors.\n\nLCDs provide detailed lists of diagnostic guidance and clinical information that, if\n\ndocumented in a patient’s medical record, suggest that the patient has a life\n\nexpectancy of six months or less. LCDs are not clinical benchmarks or mandatory\n\nrequirements for hospice eligibility, however. Rather, they are designed to help\n\nclinical staff understand the type of information that should be considered prior to\n\nconcluding that a patient is terminally ill. The LCDs themselves explicitly state\n\nthat they are non-binding.\n\n Once AseraCare physicians reach a clinical judgment that a patient is\n\neligible for hospice care, AseraCare may begin providing treatment. It submits\n\nclaims to Palmetto for reimbursement only after care has been rendered. The trial\n\ntestimony of Mary Jane Schultz, a registered nurse and former director of\n\nPalmetto’s medical review team, clarified at trial the process by which Palmetto\n\nreviewed and paid claims for hospice coverage during the relevant time period of\n\n2007 to 2012. As Ms. Schultz described, the first round of claim review was\n\nconducted by an automated claim-processing system designed to ensure that no\n\ncritical information, such as a patient’s Medicare identification number, was\n 7\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 8 of 57\n\n\nmissing or invalid. If no critical information was missing, the system would then\n\ncheck for any “red flags” that might require further review of the claim—such as\n\nthe involvement of a particular provider, patient, or type of care that Palmetto staff\n\nbelieved may pose heightened eligibility risks. For instance, if Palmetto wished to\n\nconduct a targeted audit of claims submitted by a particular provider, it could\n\nprogram the automated system to pull all or a portion of those claims for additional\n\nreview before payment.\n\n If automated review uncovered no missing information or red flags, the\n\nsystem would process the claim directly for payment. As a result, Palmetto paid\n\nmany claims without directly reviewing the medical documentation underpinning\n\nthem. Where, on the other hand, a claim was flagged for heightened medical\n\nreview, Palmetto would immediately issue a request to the provider for medical\n\ndocumentation substantiating the patient’s terminal prognosis, such as notes from\n\nphysicians, nurses, and social workers and records of medications and treatments\n\nprescribed. A trained medical review team would then review the supporting\n\ndocumentation before determining whether the claim should be paid in full, paid in\n\npart, or denied. Like AseraCare’s medical staff, the medical review team\n\ncommonly uses the LCDs as guidelines in its assessment, but it is not required to\n\nrigidly apply their criteria. Instead, the review team also looks at the “whole\n\npicture” of information submitted with the claim.\n 8\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 9 of 57\n\n\n B. The False Claims Act\n\n The False Claims Act (“FCA”) serves as a mechanism by which the\n\nGovernment may police noncompliance with Medicare reimbursement standards\n\nafter payment has been made. The Act imposes civil liability—including treble\n\ndamages—on “any person who . . . knowingly presents, or causes to be presented,\n\na false or fraudulent claim for payment” to the federal government or who\n\n“knowingly makes, uses, or causes to be made or used, a false record or statement\n\nmaterial to a false or fraudulent claim.” 31 U.S.C. § 3729(a)(1)(A)–(B). To\n\nprevail on an FCA claim, the plaintiff must prove that the defendant (1) made a\n\nfalse statement, (2) with scienter, (3) that was material, (4) causing the\n\nGovernment to make a payment. Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039,\n\n1045 (11th Cir. 2015).\n\n Private citizens, called qui tam relators, are authorized to bring FCA suits on\n\nbehalf of the United States. 31 U.S.C. § 3730(b). The United States can, and\n\nfrequently does, intervene in qui tam suits to develop the civil case itself. Thus, to\n\nthe extent the Government concludes that it has reimbursed a hospice provider that\n\nknowingly submitted deficient claims, the Government can use the FCA cause of\n\naction to recoup payments and to penalize the provider.\n\nII. PROCEDURAL HISTORY\n\n A. Suit Against AseraCare Under the FCA\n 9\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 10 of 57\n\n\n The underlying case began in 2008, when three former AseraCare\n\nemployees, acting as qui tam relators, filed a complaint against AseraCare alleging\n\nsubmission of unsubstantiated hospice claims. Following a transfer of venue from\n\nthe Eastern District of Wisconsin to the Northern District of Alabama, the\n\nGovernment intervened and filed the operative complaint. In its complaint, the\n\nGovernment alleged that AseraCare knowingly employed reckless business\n\npractices that enabled it to admit, and receive reimbursement for, patients who\n\nwere not eligible for the Medicare hospice benefit “because it was financially\n\nlucrative,” thus “misspending” millions of Medicare dollars. The Government’s\n\ncomplaint described a corporate climate that pressured sales and clinical staff to\n\nmeet aggressive monthly quotas for patient intake and, in so doing, discouraged\n\nmeaningful physician involvement in eligibility determinations. More specifically,\n\nthe Government alleged that AseraCare “submitted documentation that falsely\n\nrepresented that certain Medicare recipients were ‘terminally ill’” when, in the\n\nGovernment’s view, they were not.\n\n In light of these allegations, the Government’s case falls under the “false\n\ncertification” theory of FCA liability. Under this theory, FCA liability may arise\n\nwhere a defendant falsely asserts or implies that it has complied with a statutory or\n\nregulatory requirement when, in actuality, it has not so complied. See Universal\n\nHealth Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 1999 (2016).\n 10\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 11 of 57\n\n\n In developing its case, the Government began by identifying a universe of\n\napproximately 2,180 patients for whom AseraCare had billed Medicare for at least\n\n365 continuous days of hospice care. The Government then focused its attention\n\non a sample of 223 patients from within that universe. Through direct review of\n\nthese patients’ medical records and clinical histories, the Government’s primary\n\nexpert witness, Dr. Solomon Liao, identified 123 patients from the sample pool\n\nwho were, in Dr. Liao’s view, ineligible for the hospice benefit at the time\n\nAseraCare received reimbursement for their care. Should it prevail as to this\n\ngroup, the Government intended to extrapolate from the sample to impose further\n\nliability on AseraCare for a statistically valid set of additional claims within the\n\nbroader universe of hospice patients for whom AseraCare received Medicare\n\npayments.\n\n To supplement the testimony of Dr. Liao, the Government also sought to\n\ndevelop evidence that AseraCare’s broader business practices fostered and\n\npromoted improper certification procedures while deemphasizing clinical training\n\non terminal-illness prognostication. Several former AseraCare employees,\n\nincluding the qui tam relators, supported the Government’s narrative by describing\n\na process in which physicians merely rubber-stamped terminal-illness certifications\n\nwithout thoroughly examining the relevant medical records underlying them.\n\n Importantly, though, the Government’s false-claims allegations in this case\n 11\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 12 of 57\n\n\nwere narrowly circumscribed. There were no allegations that AseraCare billed for\n\nphantom patients, that certifications or medical documentation were forged, or that\n\nAseraCare employees lied to certifying physicians or withheld critical information\n\nregarding patient conditions. Indeed, there was no doubt in the proceeding below\n\nthat AseraCare possessed accurate and comprehensive documentation of each\n\npatient’s medical condition and that its certifications of terminal illness were\n\nsigned by the appropriate medical personnel. Rather, the Government asserted that\n\nits expert testimony—contextualized by broad evidence of AseraCare’s improper\n\nbusiness practices—would demonstrate that the patients in the sample pool were\n\nnot, as a medical fact, terminally ill at the time AseraCare collected reimbursement\n\nfor their hospice care. The sole question related to the sufficiency of the clinical\n\njudgments on which the claims were based.\n\n On this theory, the Government sought to recover damages under two\n\nsubsections of the FCA, 31 U.S.C. § 3729(a)(1)(A)2 and 31 U.S.C.\n\n§ 3729(a)(1)(B),3 and on claims of common-law unjust enrichment and mistaken\n\n\n\n2\n “[A]ny person who . . . knowingly presents, or causes to be presented, a false or fraudulent\nclaim for payment or approval . . . is liable to the United States Government . . . .” 31 U.S.C.\n§ 3729(a)(1)(A).\n3\n “[A]ny person who . . . knowingly makes, uses, or causes to be made or used, a false record or\nstatement material to a false or fraudulent claim . . . is liable to the United States\nGovernment . . . .” 31 U.S.C. § 3729(a)(1)(B).\n\n\n 12\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 13 of 57\n\n\npayment.\n\n B. First Motion for Summary Judgment\n\n Following extensive discovery and expert analysis of relevant patient\n\nrecords, AseraCare moved for summary judgment on the ground that the\n\nGovernment failed to adduce evidence of the falsity of any disputed claims and\n\nfailed to show that AseraCare had any knowledge of the alleged falsity. Most\n\nnotably for purposes of this appeal, AseraCare put squarely before the district court\n\nthe question whether the Government’s medical-opinion evidence was sufficient to\n\nestablish the threshold element of falsity. To that point, AseraCare urged the\n\ndistrict court to embrace a “reasonable doctor” standard for the assessment of\n\nfalsity, which would state that, to avoid summary judgment in an action involving\n\nfalse claims for hospice reimbursement, the Government must show that a\n\nreasonable physician applying his or her clinical judgment could not have held the\n\nopinion that the patient at issue was terminally ill at the time of certification.4\n\n The district court found the “reasonable doctor” standard “appealing and\n\nlogical,” but noted that it had not been adopted by the Eleventh Circuit and\n\n4\n AseraCare asked the district court to adopt the standard for falsity established by the Northern\nDistrict of Illinois in a case with a similar fact pattern and posture. The court in that case\ndismissed FCA claims against a for-profit hospice facility because relators failed to allege facts\n“demonstrating that the certifying physician did not or could not have believed, based on his or\nher clinical judgment, that the patient was eligible for hospice care.” United States ex rel.\nGeschrey v. Generations Healthcare, LLC, 922 F. Supp. 2d 695, 703 (N.D. Ill. 2012).\n\n\n 13\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 14 of 57\n\n\ndeclined to apply it. The court ultimately denied AseraCare’s motion for summary\n\njudgment, concluding that fact questions remained regarding whether clinical\n\ninformation and other documentation in the relevant medical records supported the\n\ncertifications of terminal illness on which AseraCare’s claims were based.\n\n Following the denial of its motion for summary judgment, AseraCare moved\n\nto certify the following question for interlocutory appeal before this Court under\n\n28 U.S.C. § 1292(b):\n\n In a False Claims Act case against a hospice provider relating to the\n eligibility of a patient for the Medicare hospice benefit, for the\n Government to establish the falsity element under 31 U.S.C.\n § 3729(a)(1), must it show that, in light of the patient’s clinical\n information and other documentation, no reasonable physician could\n have believed, based on his or her clinical judgment, that the patient\n was eligible for the Medicare hospice benefit?\n\nThe district court certified the question for interlocutory appeal. We considered\n\nAseraCare’s motion for review but declined to consider the question at that stage\n\nof the proceeding.\n\n C. Bifurcation of Trial\n\n Subsequent to the denial of summary judgment, AseraCare moved the\n\ndistrict court to bifurcate trial under Federal Rule of Civil Procedure 42(b) into two\n\nphases: one phase on the falsity element of the FCA and a second phase on the\n\nFCA’s remaining elements and the Government’s common-law claims. The\n\nGovernment vehemently opposed the motion. It argued that the proposed\n\n 14\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 15 of 57\n\n\nbifurcation was “extraordinary,” requiring the Government “to jump over an\n\narbitrary hurdle that is without precedent” because “the elements of ‘falsity’ and\n\n‘knowledge of falsity’ are not so distinct and separable that they may be tried\n\nseparately without injustice.” Indeed, the Government noted, the elements of FCA\n\nliability had “never before been bifurcated by a federal district court.” The\n\nGovernment further argued that bifurcation was unworkable because documentary\n\nand testimonial evidence that was probative in the falsity phase—“because it\n\nundermines the reliability of the [certifications of terminal illness]”—was “also\n\nprobative in the ‘knowledge of falsity’ phase because it shows AseraCare knew or\n\nshould have known that it was submitting false claims for non-terminally [sic]\n\npatients.”\n\n Nonetheless, the district court granted the motion in light of its concern that\n\nevidence pertinent to the knowledge element of the FCA would confuse the jury’s\n\nanalysis of the threshold question of whether the claims at issue were “false” in the\n\nfirst instance. The court noted that, while “pattern and practice” evidence showing\n\ndeficiencies in AseraCare’s admission and certification procedures could help\n\nestablish AseraCare’s knowledge of the alleged scheme to submit false claims—the\n\nsecond element of the Government’s case—the falsity of the claims “cannot be\n\ninferred by reference to AseraCare’s general corporate practices unrelated to\n\nspecific patients.” In the court’s view, allowing the Government to present\n 15\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 16 of 57\n\n\nknowledge evidence before falsity was determined would be unduly prejudicial to\n\nAseraCare, thus warranting separation of the knowledge and falsity elements.\n\n In accordance with this rationale, the district court “drew the line of\n\nadmissibility” in Phase One of trial “at anecdotal evidence about a specific, but\n\nunidentified, patient or event that would be impossible for the Defense to rebut.”\n\nThe court did, however, allow in Phase One anecdotal testimony regarding\n\nimproper clinical or corporate practices that “had a time and place nexus with the\n\n123 allegedly ineligible patients at issue.” Such testimony, in the court’s view,\n\nwould have been “highly probative and admissible in Phase One.” Indeed, in\n\nbifurcating trial, the court presumed—based on the Government’s own\n\nrepresentations—that the Government possessed and would present such evidence\n\nin Phase One. The court did allow in Phase One general testimony regarding\n\nAseraCare’s business practices and claim-submission process during the relevant\n\ntime period, but only to contextualize the falsity analysis and “afford[] the jury an\n\nopportunity to more fully understand the hospice process within AseraCare.” Such\n\nevidence was not, however, admissible to prove the falsity of the claims at issue. 5\n\n\n\n\n5\n The Government continues to complain on appeal that bifurcation of the trial was\n“fundamentally unfair” and confused the issues, albeit it does not expressly challenge on appeal\nthe district court’s decision.\n\n\n 16\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 17 of 57\n\n\n D. Phase One of Trial\n\n The first phase of the trial lasted approximately eight weeks and proceeded\n\nto a jury verdict largely against AseraCare on the question of falsity. During its\n\ncase in chief, the Government presented several days of testimony from Dr. Liao,\n\nwho explained that, in his expert opinion, the medical records of the patients at\n\nissue did not support AseraCare’s “terminal illness” certifications because they did\n\nnot reveal a life expectancy of six months or less. Dr. Liao made clear that his\n\ntestimony was a reflection of only his own clinical judgment based on his after-the-\n\nfact review of the supporting documentation he had reviewed. He conceded that\n\nhe was “not in a position to discuss whether another physician [was] wrong about a\n\nparticular patient’s eligibility. Nor could he say that AseraCare’s medical expert,\n\nwho disagreed with him concerning the accuracy of the prognoses at issue, was\n\nnecessarily “wrong.” Notably, Dr. Liao never testified that, in his opinion, no\n\nreasonable doctor could have concluded that the identified patients were terminally\n\nill at the time of certification. Instead, he only testified that, in his opinion, the\n\npatients were not terminally ill. Even more notable is the fact that Dr. Liao himself\n\nchanged his opinion concerning the eligibility of certain patients over the course of\n\nthe proceeding—deciding that some of the patients he had earlier concluded were\n\nnot terminally ill were in fact terminally ill. Nevertheless, he testified at trial that\n\nboth sets of contradictory opinions remained “accurate to a reasonable degree of\n 17\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 18 of 57\n\n\ncertainty.” To explain these reversals, Dr. Liao stated that he “was not the same\n\nphysician in 2013 as [he] was in 2010.”\n\n The Government also presented testimony of the relators and other\n\nAseraCare employees regarding AseraCare’s certification procedures, but, as\n\ndiscussed supra, this testimony was characterized as being offered solely to show\n\ncontext, not falsity. In rebuttal, AseraCare offered expert testimony that directly\n\ncontradicted Dr. Liao’s opinions.\n\n The parties’ expert witnesses disagreed along two lines. First and foremost,\n\nthey fundamentally differed as to how a doctor should analyze a patient’s life\n\nexpectancy for Medicare reimbursement purposes. The Government’s Dr. Liao\n\napplied what might be called a “checkbox approach” to assessing terminal illness:\n\nHe examined the patients’ records and compared them against Palmetto’s LCDs\n\n(and other, similar medical guidelines) for specific diagnoses, including\n\nAlzheimer’s, heart disease, cardiopulmonary disease, and “adult failure to thrive.”\n\nBy contrast, AseraCare’s experts considered but did not formulaically apply the\n\nLCD guidance in making their assessments. Instead, they took a “whole patient”\n\napproach, making prognoses based on the entirety of the patient’s history, the\n\nconfluence of ailments from which a patient may be suffering, and their own\n\nexperience with end-of-life care. AseraCare’s experts did not discount the LCD\n\n“criteria,” but—as the latter instruct— these experts did not consider themselves\n 18\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 19 of 57\n\n\ncompelled to conclude that a patient was ineligible merely because the patient had\n\nfailed to meet one of those indicia.\n\n The district court correctly stated in its instructions to the jury that the LCDs\n\nare “eligibility guidelines” that are not binding and should not be considered “the\n\nexact criteria used for determining” terminal illness. As such, the jury was not\n\npermitted to conclude that Dr. Liao’s testimony was more credible because he\n\nmade reference to the LCD criteria, or that AseraCare’s claims were false if they\n\nfailed to conform to those criteria. Nonetheless, the experts’ disagreement as to the\n\nproper analytical approach impacted their ultimate judgments as to each patient’s\n\nterminality.\n\n Because neither the checkbox approach nor the holistic approach to making\n\nterminal-illness prognoses is contrary to the law, the jury’s sole job at trial was to\n\nreview the medical records of each patient and decide which experts’ testimony\n\nseemed more persuasive on the question whether a particular patient should be\n\ncharacterized as “terminally ill” at the time of certification. To be clear, the\n\nGovernment never alleged that AseraCare’s doctors relied on medical\n\ndocumentation that was too thin, vague, or lacking in detail to reasonably\n\nsubstantiate their “clinical judgments” of terminal illness. Indeed, there is no\n\ndispute that each patient certification was supported by a meaningful set of medical\n\nrecords evidencing various serious and chronic ailments for which the patient was\n 19\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 20 of 57\n\n\nentitled to some level of treatment. The question before the jury was instead which\n\ndoctor’s interpretation of those medical records sounded more correct. In other\n\nwords, in this battle of experts, the jury was to decide which expert it thought to be\n\nmore persuasive, with the less persuasive opinion being deemed to be false. To\n\nguide that assessment, the district court provided the following instruction on\n\nfalsity: “A claim is ‘false’ if it is an assertion that is untrue when made or used.\n\nClaims to Medicare may be false if the provider seeks payment, or reimbursement,\n\nfor health care that is not reimbursable.”\n\n Ultimately, the expert testimony in this case revealed a fundamental\n\ndifference of professional opinion regarding the manner in which each patient’s\n\ncomplete medical picture contributed to his or her life expectancy at the time he or\n\nshe received hospice care. Both sets of experts looked at the same medical\n\ndocumentation, considered the same medical standards for the terminal-illness\n\ndetermination (even while differing as to the weight such standards should be\n\ngiven), and relied on their own experience as seasoned physicians specializing in\n\nend-of-life care. Dr. Liao testified that, in his professional opinion, the patients at\n\nissue were not likely to die within six months of the date on which they were\n\ncertified for hospice care. AseraCare’s experts arrived at opposite conclusions.\n\n As an illustration of this disagreement, consider the testimony of the\n\nGovernment’s Dr. Liao and AseraCare’s Dr. Gail Cooney regarding the patient\n 20\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 21 of 57\n\n\nElsin K., who was an AseraCare hospice patient for over a year and who ultimately\n\ndied in an AseraCare facility. Elsin was first admitted to hospice upon her\n\nphysician’s diagnosis of “debility,” also called “adult failure to thrive,” in which a\n\npatient experiences a general decline in health due to old age. Elsin experienced\n\nsubsequent periods of improvement and decline; she left hospice care and was\n\nrecertified on at least two occasions before her death.\n\n As with each patient at issue in this case, Dr. Liao’s assessment of Elsin’s\n\nhospice eligibility contrasted starkly with Dr. Cooney’s, even though there was no\n\ndispute as to Elsin’s underlying diagnoses. Dr. Liao noted that many of Elsin’s\n\nailments, including severe infections arising from a joint replacement, were\n\nchronic and had recurred for many years. He also noted that she did not\n\ndemonstrate the level of physical debility that published medical criteria typically\n\nassociate with terminal patients. On the basis of his medical review, he described\n\nElsin as struggling with chronic illness but “overall rather stable, if not\n\nimproving,” and thus lacking a prognosis of six months or less to live at the time of\n\nher certifications and recertifications. Dr. Cooney, the defense expert, also\n\nrecognized that Elsin “had been sick for a long time,” but she saw in the medical\n\nrecords a trend of steady physical and mental decline, decreased mobility, and\n\nincreasing pain. Elsin’s physical and psychological ailments, viewed in\n\ncombination with one another, complicated the picture of Elsin’s overall health and\n 21\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 22 of 57\n\n\ncontributed to Dr. Cooney’s judgment that Elsin was terminally ill during each\n\nrelevant time period. In the Government’s view, it was properly within the\n\npurview of the jury to decide which doctor’s judgment was correct and, to the\n\nextent the jury found Dr. Liao’s prognosis to be more persuasive, to find that\n\nAseraCare had thereby submitted a false statement when it filed a claim based on a\n\nprognosis that differed from Dr. Liao’s.\n\n At the conclusion of the parties’ cases, the court instructed the jury to\n\nanswer special interrogatories regarding the prognoses of each of the 123 patients\n\nat issue. The jury ultimately found that AseraCare had submitted false claims for\n\n104 patients of the 123 patients at issue during the relevant time periods.\n\n E. Grant of New Trial and Second Motion for Summary Judgment\n\n Following the partial verdict in this first phase of trial, AseraCare moved for\n\njudgment as a matter of law, arguing that the court had articulated the wrong legal\n\nstandard in its instructions to the jury. The district court agreed. In the court’s\n\nown words, “[a]s the court worked through AseraCare’s challenges,” it “became\n\nconvinced that it had committed reversible error in the instructions it provided to\n\nthe jury.” It ultimately concluded that proper jury instructions would have advised\n\nthe jury of two “key points of law” that the court had not previously\n\nacknowledged: (1) that the FCA’s falsity element requires proof of an objective\n\nfalsehood; and (2) that a mere difference of opinion between physicians, without\n 22\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 23 of 57\n\n\nmore, is not enough to show falsity. AseraCare had advocated for this legal\n\nstandard since the start of trial, but only after hearing all the evidence had the court\n\nbecome “convinced” that “a difference of opinion is not enough.” The court\n\nultimately concluded that the failure to instruct the jury on these points was\n\nreversible error and that the only way to cure the prejudice caused thereby was to\n\norder a new trial.\n\n The court then went one step further, deciding to consider summary\n\njudgment sua sponte under Federal Rule of Civil Procedure 56(f)(3). Specifically,\n\nit informed the parties that it intended to consider “whether the Government, under\n\nthe correct legal standard, has sufficient admissible evidence of more than just a\n\ndifference of opinion to show that the claims at issue are objectively false as a\n\nmatter of law.” The court gave the parties an opportunity to brief the issue,\n\nadvising that:\n\n The Government’s proof under the FCA for the falsity element would\n fail as a matter of law if all the Government has as evidence of falsity\n in the second trial is Dr. Liao’s opinion based on his clinical judgment\n and the medical records that he contends do not support the prognoses\n for the 123 patients at issue in Phase One.\n\n In its summary-judgment briefing, the Government argued that it was\n\nprocedurally improper for the court to raise summary judgment sua sponte after\n\nalready deciding to grant a new trial. The district court rejected this argument, and\n\nthe Government does not revive the challenge on appeal.\n 23\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 24 of 57\n\n\n Following briefing and a hearing, the court granted summary judgment in\n\nAseraCare’s favor on the basis of the court’s newly adopted legal standard. The\n\ncourt concluded, “[a]fter careful review of all [the parties’] submissions and the\n\nPhase One [trial] record, . . . that the Government has failed to point the court to\n\nany admissible evidence to prove falsity other than Dr. Liao’s opinion that the\n\nmedical records for the 123 patients at issue did not support the Certifications of\n\nTerminal Illness” that were submitted for Medicare reimbursement. Because\n\n“[t]he Government [ ] presented no evidence of an objective falsehood for any of\n\nthe patients at issue,” it could not prove the falsity element of its FCA claim as a\n\nmatter of law. The court thus granted summary judgment in AseraCare’s favor.\n\n The Government appeals the district court’s summary judgment order and its\n\ngrant of a new trial, contending that the legal standard the court ultimately adopted\n\nreflected a “deeply flawed” understanding of the falsity element of an FCA claim.\n\nThe Government thus asks this Court to reject the legal standard for falsity that the\n\ndistrict court adopted, reverse the district court’s grant of summary judgment and\n\norder of a new trial, and reinstate the jury’s Phase One findings: namely, that the\n\nGovernment successfully proved falsity as to several of the claims at issue.\n\nIII. STANDARD OF REVIEW\n\n This Court reviews the district court’s grant of summary judgment de novo,\n\nviewing all the evidence and drawing all reasonable inferences in favor of the non-\n 24\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 25 of 57\n\n\nmoving party. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir.\n\n2005). By contrast, we review a district court’s ruling on a motion for a new trial\n\nfor abuse of discretion. Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th\n\nCir. 1984).\n\nIV. DISCUSSION\n\n This appeal requires us to consider how Medicare’s requirements for hospice\n\neligibility—which are centered on the subjective “clinical judgment” of a\n\nphysician as to a patient’s life expectancy—intersect with the FCA’s falsity\n\nelement. Under this Court’s precedent, “Medicare claims may be false if they\n\nclaim reimbursement for services or costs that either are not reimbursable or were\n\nnot rendered as claimed.” United States ex rel. Walker v. R&F Props. of Lake Cty.,\n\nInc., 433 F.3d 1349, 1356 (11th Cir. 2005). There is no allegation that the hospice\n\nservices AseraCare provided were not rendered as claimed. Thus, the sole\n\nquestion is whether the claims AseraCare submitted were reimbursable under the\n\nMedicare framework for hospice care—that is, whether AseraCare’s certifications\n\nthat patients were terminally ill satisfied Medicare’s statutory and regulatory\n\nrequirements for reimbursement. If not, the claims are capable of being “false” for\n\nFCA purposes.\n\n Thus framed, our primary task on appeal is to clarify the scope of the\n\nhospice eligibility requirements, which are set out in the federal Medicare statute,\n 25\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 26 of 57\n\n\n42 U.S.C. § 1395f, and its implementing regulation, 42 C.F.R. § 418.22. Our\n\nsecondary task is to determine whether the district court’s formulation of the falsity\n\nstandard was consistent with the law and properly applied. Neither this Court nor\n\nany of our sister circuits has considered the standard for falsity in the context of the\n\nMedicare hospice benefit, where the controlling condition of reimbursement is a\n\nmatter of clinical judgment. After careful review of the relevant law, the\n\nunderlying record, and the considerations raised by the parties and the amici\n\ncuriae, we agree that the instruction given to the jury was inadequate and agree\n\nwith the general sense of the legal standard embraced by the district court after the\n\nverdict.\n\n A. Legal Standard for Falsity of Hospice Claims\n\n The Government argues that the district court’s initial jury instructions—that\n\n“[a] claim is ‘false’ if it is an assertion that is untrue when made or used” and that\n\n“[c]laims to Medicare may be false if the provider seeks payment, or\n\nreimbursement, for health care that is not reimbursable”—comprised a complete\n\nand correct statement of the legal standard for falsity. As applied to this case, the\n\nGovernment argues that it can show falsity by producing expert testimony that a\n\npatient’s medical records do not support a terminal-illness prognosis as a factual\n\nmatter. Where the parties present competing expert views on a patient’s prognosis,\n\nthe “falsity” of the defendant’s prognosis is put to a jury.\n 26\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 27 of 57\n\n\n AseraCare contests the Government’s characterization of the statutory and\n\nregulatory framework, arguing that the determinative inquiry in an eligibility\n\nanalysis is whether the certifying physician exercised genuine clinical judgment\n\nregarding a patient’s prognosis and further arguing that the accuracy of such\n\njudgment is not susceptible to being proven true or false as a factual matter.\n\n Given the dearth of controlling case law regarding the intersection of the\n\nFCA and the Medicare hospice benefit and the parties’ vigorous disagreement on\n\nthe fundamental points of law, we begin by defining the contours of the hospice-\n\neligibility framework and clarifying the circumstances under which a claim\n\nviolates the requirements for reimbursement. We then consider the ways in which\n\na hospice claim might be deemed “false” for purposes of the FCA.\n\n 1. Hospice Eligibility Framework\n\n Our analysis begins with the language of the relevant statute and regulations.\n\nSee United States v. Aldrich, 566 F.3d 976, 978 (11th Cir. 2009) (“[T]he ‘starting\n\npoint’ of statutory interpretation is ‘the language of the statute itself.’”) (citing\n\nRandall v. Loftsgaarden, 478 U.S. 647, 656 (1986)). “To determine the plain\n\nmeaning of a statute or regulation, we do not look at one word or term in isolation,\n\nbut rather look to the entire statutory or regulatory context.” Sec. & Exch. Comm’n\n\nv. Levin, 849 F.3d 995, 1003 (11th Cir. 2017).\n\n\n\n 27\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 28 of 57\n\n\n In relevant part, the statute states that payment for hospice care provided to\n\nan individual may be made only if:\n\n (i) in the first 90-day period . . . (I) the individual’s attending\n physician . . . and (II) the medical director (or physician\n member of the interdisciplinary group described in [42 U.S.C.\n § 1395x(dd)(2)(B)]) of the hospice program providing . . . the\n care, each certify in writing at the beginning of the period, that\n the individual is terminally ill (as defined in [42 U.S.C.\n § 1395x(dd)(3)(A)]) based on the physician’s or medical\n director’s clinical judgment regarding the normal course of the\n individual’s illness, [and]\n\n (ii) in a subsequent 90- or 60-day period, the medical director or\n physician . . . recertifies at the beginning of the period that the\n individual is terminally ill based on such clinical judgment.\n\n42 U.S.C. § 1395f(a)(7)(A) (emphasis added). 6 “Terminally ill” means that the\n\nindividual “has a medical prognosis that the individual’s life expectancy is 6\n\n\n\n6\n The statute contains three additional requirements, each of which was in place during the\nrelevant time period of 2007 through 2012:\n\n (B) a written plan for providing hospice care with respect to such individual has been\n established . . . and is periodically reviewed by the individual’s attending physician\n and by the medical director (and the interdisciplinary group described in 42 U.S.C.\n § 1395x(dd)(2)(B)]) of the hospice program;\n\n (C) such care is being or was provided pursuant to such plan of care; [and]\n\n (D) on and after January 1, 2011 . . . a hospice physician or nurse practitioner has a face-\n to-face encounter with the individual to determine continued eligibility . . . prior to\n the 180th-day recertification and each subsequent recertification . . . and attests that\n such visit took place . . . .\n\n42 U.S.C. § 1395f(a)(7). The Government does not allege that AseraCare failed to meet any of\nthese additional requirements.\n\n\n 28\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 29 of 57\n\n\nmonths or less.” 42 U.S.C. § 1395x(dd)(3)(A). In any case, “no payment may be\n\nmade . . . for any expenses incurred . . . which are not reasonable and necessary for\n\nthe palliation or management of terminal illness.” 42 U.S.C. § 1395y(a)(1)(C).\n\n The implementing regulations echo the language of the statute, reiterating\n\nthat each written certification of terminal illness “will be based on the physician’s\n\nor medical director’s clinical judgment regarding the normal course of the\n\nindividual’s illness.” 42 C.F.R. § 418.22(b). See also 42 C.F.R. § 418.22(a)(1)\n\n(stating “general rule” that hospice provider “must obtain written certification of\n\nterminal illness” for each claimed period of care).\n\n The regulations go on to identify several requirements for the submission of\n\nclaims. First, and most significant to this appeal, “[c]linical information and other\n\ndocumentation that support the medical prognosis must accompany the\n\ncertification and must be filed in the medical record with the written certification.”\n\n42 C.F.R. § 418.22(b)(2). Second, the certifying physician must include with the\n\ncertification “a brief narrative explanation of the clinical findings that supports a\n\nlife expectancy of 6 months or less.” 42 C.F.R. § 418.22(b)(3). This narrative\n\nexplanation “must reflect the patient’s individual clinical circumstances and cannot\n\ncontain check boxes or standard language used for all patients.” 42 C.F.R.\n\n\n\n\n 29\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 30 of 57\n\n\n§ 418.22(b)(3)(iv).7 And third, in deciding whether to certify a patient as\n\nterminally ill, a physician is obligated to consider several factors: the patient’s\n\nprimary terminal condition and related diagnoses; current subjective and objective\n\nmedical findings; current medication and treatment orders; and information about\n\nthe medical management of any conditions unrelated to the terminal illness.\n\n42 C.F.R. § 418.102(b); 42 C.F.R. § 418.25(b) (establishing that, “[i]n reaching a\n\ndecision to certify that the patient is terminally ill, the hospice medical direct must\n\nconsider at least” the diagnosis of the patient, other health conditions, and\n\n“[c]urrent clinically relevant information supporting all diagnoses”). See also 78\n\nFed. Reg. 48234, 48247 (Aug. 7, 2013) (“[T]he certification of terminal illness is\n\nbased in the unique clinical picture of the individual that is reflected in the\n\ncomprehensive assessment and other clinical records and documentation . . . .”); 79\n\nFed. Reg. 50452, 50471 (Aug. 22, 2014) (noting that, in deciding whether to\n\nrecertify a patient who has not shown measurable decline, the physician “must\n\nassess and evaluate the full clinical picture” of the patient).\n\n The language of the statute and implementing regulations makes plain that\n\nthe clinical judgment of the patient’s attending physician (or the provider’s medical\n\n\n\n7\n The requirement of a brief narrative explanation accompanying the certification was added to\nthe regulations on October 1, 2009. See 74 Fed. Reg. 39384, 39398–400, 39413 (Aug. 6, 2009).\n\n\n 30\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 31 of 57\n\n\ndirector, as the case may be) lies at the center of the eligibility inquiry. Under this\n\nlanguage, a patient is eligible for the Medicare hospice benefit if the appropriate\n\nphysician makes a clinical judgment that the patient is terminally ill in light of the\n\npatient’s complete medical picture, as evidenced by the patient’s medical records.\n\n Importantly, none of the relevant language states that the documentary\n\nrecord underpinning a physician’s clinical judgment must prove the prognosis as a\n\nmatter of medical fact. Indeed, CMS has recognized in crafting the implementing\n\nregulations that “[p]redicting life expectancy is not an exact science.” 75 Fed.\n\nReg. 70372, 70448 (Nov. 17, 2010). See also 79 Fed. Reg. at 50470 (“[W]e also\n\nhave recognized the challenges in prognostication” and therefore expect “that the\n\ncertifying physicians will use their best clinical judgment.”). 8 Nor does this\n\nframework state or imply that the patient’s medical records must unequivocally\n\ndemonstrate to an unaffiliated physician, reviewing the records after the fact, that\n\nthe patient was likely to die within six months of the time the certifying\n\nphysician’s clinical judgment was made. Rather, the framework asks a physician\n\n\n\n\n8\n We have held in the context of FCA proceedings that “guidance issued by the governmental\nagency charged with administrating the regulatory scheme,” including the Medicare regulatory\nscheme, “can be consulted to understand the meaning of that regulation.” United States ex rel.\nWalker v. R&F Props. of Lake Cty., Inc., 433 F.3d 1349, 1357 (11th Cir. 2005).\n\n\n 31\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 32 of 57\n\n\nresponsible for the patient’s care to exercise his or her judgment as to the proper\n\ninterpretation of the patient’s medical records.\n\n The Government seeks to elevate the significance of the regulation’s\n\nsupporting-documentation requirement, asserting that eligibility “turns on”\n\nwhether the clinical information and other documentation accompanying a\n\ncertification of terminal illness support, as a factual matter, the physician’s\n\ncertification. Specifically, the Government maintains that the testimony of Dr.\n\nLiao, which “was designed to assist the jury in understanding the medical records”\n\nfor each patient, created “a factual dispute as to whether ‘[c]linical information and\n\nother documentation’ in the medical record ‘support[ed] the medical prognosis’ of\n\na life expectancy of six months or less.” (Citing 42 C.F.R. § 418.22(b)(2).)\n\n We conclude that the Government’s framing of the eligibility inquiry is not\n\nconsistent with the text or design of the law. The relevant regulation requires only\n\nthat “clinical information and other documentation that support the medical\n\nprognosis . . . accompany the certification” and “be filed in the medical record.”\n\n42 C.F.R. § 418.22(b)(2) (emphases added). This “medical prognosis” is, itself,\n\n“based on the physician’s . . . clinical judgment.” 42 C.F.R. § 418.22(b). To\n\nconclude that the supporting documentation must, standing alone, prove the\n\nvalidity of the physician’s initial clinical judgment would read more into the legal\n\nframework than its language allows. Read in the context of the statute and\n 32\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 33 of 57\n\n\nregulations, the requirement that supporting documentation “accompany” the claim\n\nis designed to address CMS’s mandate that “there must be a clinical basis for a\n\ncertification.” 79 Fed. Reg. at 50470 (noting that, although “certification is based\n\non a clinical judgment,” this “does not negate the fact that there must be a clinical\n\nbasis for a certification”). That is, the physician’s clinical judgment dictates\n\neligibility as long as it represents a reasonable interpretation of the relevant\n\nmedical records.\n\n We also note that, had Congress or CMS intended the patient’s medical\n\nrecords to objectively demonstrate terminal illness, it could have said so. Yet,\n\nCongress said nothing to indicate that the medical documentation presented with a\n\nclaim must prove the veracity of the clinical judgment on an after-the-fact review.\n\nAnd CMS’s own choice of the word “support”—instead of, for example,\n\n“demonstrate” or “prove”—does not imply the level of certitude the Government\n\nwishes to attribute to it. Cf. Davidson v. Capital One Bank (USA), N.A., 797 F.3d\n\n1309, 1316 (11th Cir. 2015) (We “presume that Congress said what it meant and\n\nmeant what it said.”) (quotation marks omitted).\n\n More broadly, CMS’s rulemaking commentary signals that well-founded\n\nclinical judgments should be granted deference. As noted supra, CMS has\n\nrepeatedly emphasized that “[p]redicting life expectancy is not an exact science.”\n\n75 Fed. Reg. at 70448. See also 79 Fed. Reg. at 50470 (same). And in clarifying\n 33\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 34 of 57\n\n\nthe process for reporting a patient’s “principal hospice diagnosis” on a hospice\n\nclaim, CMS stated: “We believe that the certifying physicians have the best\n\nclinical experience, competence and judgment to make the determination that an\n\nindividual is terminally ill.” 78 Fed. Reg. at 48247. Furthermore, in response to\n\npublic comment, CMS removed the term “criteria” from a proposed regulation\n\ndefining the certification requirements, wishing “to remove any implication that\n\nthere are specific CMS clinical benchmarks in this rule that must be met in order to\n\ncertify terminal illness.” 73 Fed. Reg. 32088, 32138 (June 5, 2008). While there is\n\nno question that clinical judgments must be tethered to a patient’s valid medical\n\nrecords, it is equally clear that the law is designed to give physicians meaningful\n\nlatitude to make informed judgments without fear that those judgments will be\n\nsecond-guessed after the fact by laymen in a liability proceeding.\n\n The Government cautions that a narrow reading of the eligibility framework\n\n“would entitle hospice providers to reimbursement for services provided to any\n\nindividual, regardless of medical condition, assuming the provider could find a\n\nphysician willing to sign the certification.” This point again ignores that the\n\nphysician’s clinical judgment, informed by the patient’s medical records, is the\n\nthreshold requirement for eligibility. A physician cannot, as the Government\n\nsuggests, hold a clinical judgment under the eligibility framework that disregards\n\nthe patient’s underlying medical condition. See, e.g., 42 C.F.R. § 418.102(b)\n 34\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 35 of 57\n\n\n(identifying factors physicians must consider when arriving at clinical judgments\n\nregarding terminal illness, including “subjective and objective medical findings”\n\nregarding the patient’s condition). Such a clinical judgment would clearly be\n\nillegitimate under the law.\n\n The Government further warns that, under our reading of the framework, “if\n\na physician certifies a patient as terminally ill, CMS is required to reimburse the\n\nhospice care provider unless it can determine that no other reviewer of the patient’s\n\nmedical records could possibly conclude the patient was terminally ill.” But, as the\n\nGovernment elsewhere notes, CMS is statutorily prohibited from reimbursing\n\nproviders for services “which are not reasonable and necessary for the palliation or\n\nmanagement of terminal illness.” 42 U.S.C. § 1395y(a)(1)(C). See also 79 Fed\n\nReg. 50452, 50470 (Aug. 22, 2014) (explaining that CMS retains a well-\n\nestablished right to review claims for hospice reimbursement and to deny claims\n\nthat it does not consider to be “reasonable and necessary” under the statutory\n\nstandard). The Government’s argument that our reading of the eligibility\n\nframework would “tie CMS’s hands” and “requir[e] improper reimbursements” is\n\ncontrary to the plain design of the law.\n\n 2. Falsity in this case under the FCA\n\n Having identified the contours of the Medicare framework, it becomes clear\n\nthat there are two separate representations embedded in each claim for hospice\n 35\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 36 of 57\n\n\nreimbursement: a representation by a physician to AseraCare that the patient is\n\nterminally ill in the physician’s clinical judgment and a representation by\n\nAseraCare to Medicare that such clinical judgment has been obtained and that the\n\npatient is therefore eligible. As such, this case requires us to distinguish between\n\ntwo possible species of “falsity.” The first relates to the legitimacy of a\n\nphysician’s clinical judgment. The second relates to the legitimacy of AseraCare’s\n\nstatement that a clinical judgment has been properly made.\n\n Under the Government’s false-certification theory in this case, AseraCare\n\n“submitted documentation that falsely represented that certain Medicare recipients\n\nwere ‘terminally ill’” when, in the Government’s view, they were not. There is no\n\nallegation that AseraCare submitted claims that were not, in fact, based on a\n\nphysician’s properly formed clinical judgment, nor is there an allegation that\n\nAseraCare failed to abide by each component of the claim requirements. 9 The\n\nGovernment’s allegations focus solely on the accuracy of the physician’s clinical\n\njudgment regarding terminality. If, the theory goes, AseraCare represented to\n\nMedicare that a patient was “terminally ill” based on a physician’s clinical\n\n\n\n9\n We might, for instance, envision a viable FCA suit alleging that a hospice provider failed to\nobtain any clinical judgment at all, or obtained a clinical judgment from someone other than the\npatient’s attending physician or the provider’s medical director, or fabricated the certification\nitself. No such facts are alleged here.\n\n\n 36\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 37 of 57\n\n\njudgment, and the Government later persuades a jury that this clinical judgment\n\nwas wrong, then AseraCare’s representation was, in turn, “false.” This “falsity”\n\nopens the door to FCA liability. Thus, the Government’s FCA case hangs entirely\n\non the following question: When can a physician’s clinical judgment regarding a\n\npatient’s prognosis be deemed “false”?\n\n In light of our foregoing discussion, we concur with the district court’s post-\n\nverdict conclusion that “physicians applying their clinical judgment about a\n\npatient’s projected life expectancy could disagree, and neither physician [ ] be\n\nwrong.” Indeed, the Government’s own witness—Mary Jane Schultz, the former\n\nhead of Palmetto’s medical review department—conceded at trial that “two doctors\n\nusing their clinical judgment could come to different conclusions about a patient's\n\nprognosis and neither be right or wrong.” Nothing in the statutory or regulatory\n\nframework suggests that a clinical judgment regarding a patient’s prognosis is\n\ninvalid or illegitimate merely because an unaffiliated physician reviewing the\n\nrelevant records after the fact disagrees with that clinical judgment. Nor does the\n\nlaw suggest that a hospice provider has failed to comply with Medicare’s\n\nrequirements for hospice reimbursement if the only flaw in its claim is an absence\n\nof certitude that, in light of the relevant medical records, the patient will die within\n\nsix months. The legal framework signals, and CMS itself has acknowledged, that\n\nno such certitude can be expected of physicians in the practice of treating end-of-\n 37\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 38 of 57\n\n\nlife illness. All the legal framework asks is that physicians exercise their best\n\njudgment in light of the facts at hand and that they document their rationale.\n\n It follows that when a hospice provider submits a claim that certifies that a\n\npatient is terminally ill “based on the physician’s or medical director’s clinical\n\njudgment regarding the normal course of the individual’s illness,” 42 U.S.C.\n\n§ 1395f(7), 42 C.F.R. § 418.22(b), the claim cannot be “false”—and thus cannot\n\ntrigger FCA liability—if the underlying clinical judgment does not reflect an\n\nobjective falsehood.\n\n Objective falsehood can be shown in a variety of ways. Where, for instance,\n\na certifying physician fails to review a patient’s medical records or otherwise\n\nfamiliarize himself with the patient’s condition before asserting that the patient is\n\nterminal, his ill-formed “clinical judgment” reflects an objective falsehood. The\n\nsame is true where a plaintiff proves that a physician did not, in fact, subjectively\n\nbelieve that his patient was terminally ill at the time of certification. A claim may\n\nalso reflect an objective falsehood when expert evidence proves that no reasonable\n\nphysician could have concluded that a patient was terminally ill given the relevant\n\nmedical records. In each of these examples, the clinical judgment on which the\n\nclaim is based contains a flaw that can be demonstrated through verifiable facts.\n\n By contrast, a reasonable difference of opinion among physicians reviewing\n\nmedical documentation ex post is not sufficient on its own to suggest that those\n 38\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 39 of 57\n\n\njudgments—or any claims based on them—are false under the FCA. A properly\n\nformed and sincerely held clinical judgment is not untrue even if a different\n\nphysician later contends that the judgment is wrong. Cf. Omnicare, Inc. v.\n\nLaborers Dist. Council Const. Indus. Pension Fund, 135 S. Ct. 1318, 1327 (2015)\n\n(holding that “a sincere statement of pure opinion is not an ‘untrue statement of\n\nmaterial fact’” under the Securities Act of 1933, “regardless whether an investor\n\ncan ultimately prove the belief wrong”).\n\n Accordingly, in order to properly state a claim under the FCA in the context\n\nof hospice reimbursement, a plaintiff alleging that a patient was falsely certified for\n\nhospice care must identify facts and circumstances surrounding the patient’s\n\ncertification that are inconsistent with the proper exercise of a physician’s clinical\n\njudgment. Where no such facts or circumstances are shown, the FCA claim fails\n\nas a matter of law.\n\n In so holding, we agree with the district court’s conclusion that, in order to\n\nshow objective falsity as to a claim for hospice benefits, the Government must\n\nshow something more than the mere difference of reasonable opinion concerning\n\nthe prognosis of a patient’s likely longevity. 10 And although we appear to be the\n\n\n\n10\n Several district courts within and outside the Eleventh Circuit have embraced comparable\nreasoning in cases alleging FCA liability on the basis of clinical judgments of terminal illness.\nSee, e.g., United States ex rel. Wall v. Vista Hospice Care, Inc., 2016 WL 3449833, at *17 (N.D.\n\n 39\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 40 of 57\n\n\nfirst circuit court to consider the precise question at issue here, a number of\n\nopinions from our sister circuits lends support to our conclusion that the\n\nGovernment must show an objective falsity. 11\n\n\n\n\nTex. June 20, 2016) (“Because a physician must use his or her clinical judgment to determine\nhospice eligibility, an FCA claim about the exercise of that judgment must be predicated on the\npresence of an objectively verifiable fact at odds with the exercise of that judgment, not a matter\nof questioning subjective clinical analysis.”); United States ex rel. Fowler v. Evercare Hospice,\nInc., 2015 WL 5568614, at *9 (D. Colo. Sept. 21, 2015) (observing that, if Government’s\ncomplaint had been “based entirely on disagreements with [the provider’s] certifying\nphysicians,” the complaint “would be insufficient to state a claim”); United States ex rel.\nGeschrey v. Generations Healthcare, LLC, 922 F. Supp. 2d 695, 703 (N.D. Ill. 2012) (dismissing\nFCA claims because “[r]elators have not alleged facts demonstrating that the certifying physician\ndid not or could not have believed, based on his or her clinical judgment, that the patient was\neligible for hospice care”). But see Druding v. Care Alternatives, Inc., 164 F. Supp. 3d 621, 623\n(D.N.J. 2016) (holding that where plaintiffs alleged that patients were ineligible for hospice\nbecause they did not meet LCD criteria, claims were “legally false . . . because the claim[s] did\nnot include sufficient clinical facts in the patient’s medical records to justify a terminal\nprognosis”).\n11\n See United States ex rel. Yannacopoulos v. General Dynamics, 652 F.3d 818, 836 (7th Cir.\n2011) (stating that “[a] statement may be deemed ‘false’ for purposes of the False Claims Act\nonly if the statement presents ‘an objective falsehood’”) (citing United States ex rel. Wilson v.\nKellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008)); United States ex rel. Loughren\nv. Unum Grp., 613 F.3d 300, 310 (1st Cir. 2010), (explaining that an opinion may qualify as a\nfalse statement for purposes of the FCA where the speaker “knows facts ‘which would preclude\nsuch an opinion’”) (quoting United States ex rel. Siewick v. Jamieson Science and Engineering,\nInc., 214 F.3d 1372, 1378 (D.C. Cir. 2000)); Wilson, 525 F.3d at 376–77 (holding that “[t]o\nsatisfy [the] first element of an FCA claim, the statement or conduct alleged must represent an\nobjective falsehood” and “imprecise statements or differences in interpretation growing out of a\ndisputed legal question are [ ] not false under the FCA”) (quotation omitted); United States ex\nrel. Burlbaw v. Orenduff, 548 F.3d 931, 959 (10th Cir. 2008) (“At a minimum the FCA requires\nproof of an objective falsehood.”); Harrison v. Westinghouse Savannah River Co., 176 F.3d 776,\n792 (4th Cir. 1999) (noting that opinions or estimates can be “false” under the FCA if their\nspeaker knows they are not supported by the facts); Hooper v. Lockheed Martin Corp., 688 F.3d\n1037, 1047–49 (9th Cir. 2012) (same). Cf. Omnicare, Inc. v. Laborers Dist. Council Const.\nIndus. Pension Fund, 135 S. Ct. 1318, 1323, 1326–27 (2015) (holding in the context of securities\nfraud statutes that a statement of opinion can be “false” if the opinion did not reflect the\nspeaker’s actual belief at the time it was given).\n\n 40\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 41 of 57\n\n\n The Government urges that the standard we adopt today improperly\n\n“usurp[s] the role of the jury” by precluding the jury from determining, based on\n\nexpert testimony, the accuracy of the clinical judgments at issue. In support of this\n\ncontention, the Government relies heavily on this Court’s reasoning in United\n\nStates ex rel. Walker v. R&F Properties of Lake County, Inc., 433 F.3d 1349 (11th\n\nCir. 2005). But Walker is clearly distinguishable and does not control our analysis.\n\n In Walker, an FCA relator contended that her employer, a medical-clinic\n\noperator, billed Medicare for services rendered by non-physicians as if those\n\nservices had been rendered “incident to the service of a physician,” as the relevant\n\nstatute required. See id. at 1353. In reality, the relator alleged, services had been\n\nprovided by nurse practitioners or physician assistants without any physician\n\ninvolvement. Id. The defendant-clinic did not dispute that physicians were not\n\npresent in the clinic when services were rendered. Id. at 1354. It argued instead\n\nthat these claims could not have been false as a matter of law because the meaning\n\nof “incident to the service of a physician” was “vague and subject to reasonable\n\ninterpretations other than that championed by Walker.” Id. Specifically, the clinic\n\nargued that it interpreted “incident to the service of a physician” to cover services\n\nthat were rendered by non-physicians as long as a physician was available by pager\n\nor telephone, even if not actually physically present in the office. Id. The district\n\n\n\n 41\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 42 of 57\n\n\ncourt agreed, finding the statute ambiguous and defendant’s interpretation of the\n\nstatute reasonable. Id.\n\n This Court reversed. Walker, 433 F.3d at 1356. The question presented was\n\nwhether a claim based on a reasonable interpretation of an ambiguous statutory\n\nterm could never be deemed “false,” or whether instead the meaning of the\n\nambiguous term—and the corresponding falsity of the claims made thereunder—\n\ncould potentially pose factual questions that should be put to a factfinder. Id.\n\nGiven the particular facts of the case before us, our Court adopted the latter\n\napproach. Specifically, the relator presented evidence from the Medicare Carrier’s\n\nmanual, Medicare bulletins, and seminar programs to “support a finding that, in the\n\nMedicare community, the language of the statute was understood to mean that a\n\nphysician had to be physically present in the office suite” in order to justify\n\nreimbursement for the medical service provided by a non-physician. Id. at 1356–\n\n57. We concluded that this evidence created a jury question as to both whether the\n\nMedicare regulation required more physician involvement with a patient than the\n\ndefendant clinic had provided and whether the defendant knew of this requirement.\n\nId. at 1358.\n\n In Walker, the eligibility criterion at issue was subject to multiple\n\ninterpretations because its language was ambiguous, yet ultimately only one of the\n\ntwo possible interpretations could be deemed correct. By contrast, the key\n 42\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 43 of 57\n\n\neligibility criterion at issue here—“terminally ill”—presents, by design, a question\n\nof debatable clinical judgment that may not, in all circumstances, lend itself to just\n\none determination as to the proper exercise of that judgment. As the district court\n\nnoted below, asking the jury to decide whether medical records supported a finding\n\nof “terminal illness” put the jury in the position of evaluating, and second-\n\nguessing, the clinical judgment of the certifying physician. This is not the role the\n\nfactfinder was playing in Walker; indeed, it is a role requiring medical knowledge\n\nand expertise that Congress has clearly reserved for physicians in the hospice-\n\nbenefit context. Walker therefore does not compel the conclusion that eligibility\n\nrequirements that hinge on clinical judgment present jury questions simply because\n\nthey are susceptible to differing opinions, each of which could be reasonable.\n\n The Government has also filed supplemental authority, citing to out-of-\n\ncircuit appellate cases that it says establish that a mere difference of medical\n\nopinion can be sufficient to show that a statement is false. We find these cases\n\ndistinguishable. In United States v. Paulus, 894 F.3d 267 (6th Cir. 2018), the\n\nphysician-defendant had been convicted of healthcare fraud based on his\n\nperformance of allegedly unnecessary coronary stent procedures. In arguing for\n\nreversal of his conviction, the defendant contended that he based his decision to\n\nperform the procedures on his interpretation of angiogram tests showing a high\n\ndegree of blockage in the patients’ arteries, and thus his medical judgment on this\n 43\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 44 of 57\n\n\npoint represented merely an opinion that could neither be truthful nor false. The\n\nGovernment contended that, to the contrary, the defendant had lied when he said\n\nthat he interpreted the angiograms as showing a level of coronary blockage that\n\nwould warrant inserting a stent into the heart, and it offered substantial expert\n\ntestimony disputing that the level of blockage shown on the angiogram test was at\n\nthe level the defendant asserted it was.\n\n The Sixth Circuit12 agreed with the defendant that “[o]rdinarily, facts are the\n\nonly item that fits in [the false statement] category; opinions—when given\n\nhonestly—are almost never false . . . .There is no such thing as a false idea.” Id. at\n\n275 (citations and internal quotation marks omitted). Nevertheless, the court\n\ncontinued, opinions have “never been completely insulated from scrutiny. At the\n\nvery least, opinions may trigger liability for fraud when they are not honestly held\n\nby their maker, or when the speaker knows of facts that are fundamentally\n\nincompatible with his opinion.” Id. The court then cited with apparent approval\n\nthe district court opinion in the present case for the proposition that “certain good-\n\n\n\n\n12\n The Paulus court indicated its intention to clarify the standard underlying its earlier decision\nin United States v. Persaud, 866 F.3d 371 (6th Cir. 2017), which the Government has also cited\nin the present case. Paulus, 894 F.3d at 275.\n\n\n 44\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 45 of 57\n\n\nfaith medical diagnoses by a doctor cannot be false.” 13 Id. In the case before it,\n\nhowever, the Paulus court noted that “coronary artery blockage actually exists as\n\nan aspect of reality,” meaning that an assertion about the degree of blockage can be\n\nobjectively true or false. Id. at 276 (quotation marks omitted). And it concluded\n\nthat the Government’s expert testimony was sufficient to support an inference that\n\nthe defendant had lied when he reported readings of the angiograms that the\n\nexperts said were simply not true: “[W]e think it is clear that Paulus was convicted\n\nfor misrepresenting facts, not giving opinions.” Id.\n\n Moreover, whereas in the present case the Government’s expert witness\n\ndeclined to conclude that Asercare’s physicians had lied about their clinical\n\njudgment or even that their judgments were unreasonable or wrong 14—as opposed\n\nto just different from what the Government’s expert opined—in Paulus, it appears\n\nclear that the Government’s experts there were not so charitable. The Paulus court\n\nnoted that the Government had claimed that “Paulus repeatedly and systematically\n\nsaw one thing on the angiogram and consciously wrote down another, and then\n\n\n\n13\n The court stated, “see also United States v. AseraCare, Inc., 176 F. Supp. 3d 1282 (N.D. Ala.\n2016) (holding that certain good-faith medical diagnoses by a doctor cannot be false.”) Paulus,\n894 F.3d at 275.\n14\n As noted supra, the former head of the Palmetto medical review team, called as a Government\nwitness, also conceded at trial that “two doctors using their clinical judgment could come to\ndifferent conclusions about a patient's prognosis and neither be right or wrong.”\n\n\n 45\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 46 of 57\n\n\nused that misinformation to perform and bill unnecessary procedures,” and it\n\nexplained that “[h]owever difficult it might be for a cardiology expert to prove that\n\nhis colleague was lying about what he saw on a scan,” it was up to the jury to\n\ndecide the reliability of that testimony. Id. at 267–77. In short, the Government’s\n\nexpert testimony in Paulus appeared to suggest that no reasonable doctor could\n\ninterpret the scan as had Paulus and that Paulus was actually lying. Thus, Paulus is\n\nnot supportive of the Government’s contentions here.15\n\n\n\n15\n The Government here also cites United States ex rel. Polukoff v. St. Mark’s Hospital, 895\nF.3d 730 (10th Cir. 2018), an FCA case in which the district court had granted the defendant’s\nmotion to dismiss on the ground that his medical judgment about the need for cardiac PFO\nclosure procedures to prevent future strokes in his patients was an opinion that was not subject to\nbeing deemed true or false. The Tenth Circuit reversed, found a plausible allegation of falsity,\nand directed that the case proceed to discovery. The circuit court noted that the Government had\nalleged that the applicable Medicare statute authorized reimbursement only when the he PFO\nprocedure was reasonable and necessary for the treatment of an illness; that there is agreement in\nthe medical community that a PFO closure is not medically necessary except where there is a\nconfirmed diagnosis of a recurrent stroke; that the applicable guidelines allow for consideration\nof the procedure only when the patient has had two or more strokes and that the guidelines do not\n“contemplate the potential for PFO closures” if the patient has not had a prior stroke; that the\ndefendant claimed to believe that the procedure should be performed prophylactically to cure\nmigraine headaches or to prevent strokes even if the patient had never before had a stroke; and,\nknowing that Medicare would not pay on that basis, the defendant falsely represented that the\nprocedure was being performed based on the indications set forth in the guidelines. Id. at 736,\n737. In addition, a fellow physician alleged that he had witnessed the defendant perform an\nunnecessary procedure and actually create the problem the surgery was intended to remedy by\npuncturing intact septa in the patients. Id. at 738.\n\nObviously, the above facts are quite different from those alleged in this case. It is true that the\nTenth Circuit opinion held that regardless of the physician’s opinion to the contrary, he will be\ndeemed to have made a false statement when claiming reimbursement if the medical procedure is\ndetermined to have not been reasonable or necessary. “We thus hold that a doctor’s certification\nto the government that a procedure is ‘reasonable and necessary’ is ‘false’ under the FCA if the\nprocedure was not reasonable and necessary under the government’s definition of the phrase.”\n\n 46\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 47 of 57\n\n\n The Government expresses concern that a requirement of objective\n\nfalsehood will produce a troubling under-inclusion problem: that is, by holding\n\nthat an FCA claim fails as a matter of law if the plaintiff proves nothing more than\n\na reasonable difference of opinion as to the patient’s prognosis, hospice providers\n\nwith sloppy or improper admission practices may evade FCA liability so long as\n\nthey can argue after the fact that their physicians’ clinical judgments were\n\njustifiable. That may well be. To be sure, it will likely prove more challenging for\n\nan FCA plaintiff to present evidence of an objective falsehood than to find an\n\nexpert witness willing to testify to a contrasting clinical judgment regarding cold\n\nmedical records.\n\n But if this is a problem, it is one for Congress or CMS to solve. In deciding\n\nhow to craft the hospice eligibility requirements, Congress and CMS could have\n\nimposed a more rigid set of criteria for eligibility determinations that would have\n\nminimized the role of clinical judgment. Instead, they were careful to place the\n\nphysician’s clinical judgment at the center of the inquiry. Indeed, CMS has\n\nconsidered and expressly declined to impose defined criteria that would govern the\n\nphysician’s exercise of judgment. See 73 Fed. Reg. 32088, 32138 (June 5, 2008).\n\n\n\nId. at 742. As set out in text, however, the hospice-benefit provision at issue here, by design,\nlooks to whether a physician has based a recommendation for hospice treatment on a genuinely-\nheld clinical opinion as to a patient’s likely longevity.\n\n 47\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 48 of 57\n\n\n In any event, absent a showing of an objective and knowing falsehood, the\n\nFCA is an inappropriate instrument to serve as the Government’s primary line of\n\ndefense against questionable claims for reimbursement of hospice benefits. For the\n\nabove reasons, we agree that the district court’s jury instruction concerning falsity\n\nwas lacking and that a new trial was warranted to allow the giving of a more\n\ncomplete charge: specifically, a charge that would convey that the mere difference\n\nof reasonable opinion between physicians, without more, 16 as to the prognosis for a\n\npatient seeking hospice benefits does not constitute an objective falsehood. We\n\ntherefore AFFIRM the district court’s grant of a new trial.\n\n B. Grant of Summary Judgment\n\n Deciding that the district court acted correctly in determining that a new trial\n\nwas warranted—with a revised instruction to the jury concerning falsity—does not\n\nend our review of this case. Instead, as noted in the procedural discussion above,\n\nthe district court went further and, after granting a new trial, it then sua sponte\n\ngranted summary judgment to AseraCare. The court reasoned as follows. Given\n\nits new position on the standard for determining falsity—that falsity cannot be\n\nestablished based merely on a reasonable disagreement between experts as to\n\n\n\n16\n Should there be another trial on this matter, we leave to the district court and the parties the\ntask of fleshing out just what that “more” needs to include.\n\n\n 48\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 49 of 57\n\n\nwhether clinical records in a patient’s file warranted a prognosis of a terminal\n\nillness that would likely result in the patient’s death within six months—the district\n\ncourt indicated that it would hear from the Government whether the court record\n\ncontained any other evidence sufficient to create a jury question as to whether\n\nAseraCare had made an objectively false representation when claiming\n\nreimbursement for hospice benefits it had provided. Following that response and\n\nconcluding that the Government’s evidence of falsity consisted only of Dr. Liao’s\n\ntestimony indicating his disagreement with the prognosis arrived at by AseraCare\n\nfor most of the patient files he reviewed, the district court found that the\n\nGovernment’s evidence of falsity was insufficient to allow it to proceed further.\n\nFor that reason, the court granted summary judgment.\n\n Leaving aside the question whether the substance of an opinion, by itself,\n\ncan ever be deemed to constitute an objective falsity, the parties agree that an\n\nopinion can be considered objectively false if the speaker does not actually hold\n\nthat opinion. See Omnicare, Inc. v. Laborers Dist. Council Const. Indus. Pension\n\nFund, 135 S. Ct. 1318, 1323, 1326–27 (2015) (holding in the context of securities\n\nfraud statutes that a statement of opinion can be “false” if the opinion did not\n\nreflect the speaker’s actual belief at the time it was given). Further, in examining\n\nwhether a physician’s clinical judgment was truly communicated, the latter must\n\nfirst have actually exercised such judgment. If it can be shown that the physician\n 49\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 50 of 57\n\n\nnever considered the underlying records supporting the prognosis at issue, but\n\ninstead rubber-stamped whatever file was put in front of him, then the physician\n\nhas offered no clinical judgment. Moreover, an opinion can enter falsifiable\n\nterritory when it is based on information that the physician knew, or had reason to\n\nknow, was incorrect. Finally, if no reasonable physician would think that a patient\n\nhad a terminal illness based on the evidence before that physician, then falsity can\n\nbe inferred, as well as the existence of a knowing violation.\n\n With the above thoughts in mind, the Government argues that the district\n\ncourt took too constricted a view of the evidence upon which a determination of\n\nfalsity could be made by a jury when it refused to consider other evidence from the\n\nfirst phase of the trial that the Government asserts tended to show knowledge of\n\nthe falsity of the claim, as well as evidence that the Government intended to\n\npresent in the second phase of the trial to further show AseraCare’s alleged\n\nawareness 17 that it was submitting claims that did not reflect a physician’s good\n\nfaith clinical judgment and prognosis for each patient. In its opposition to the sua\n\nsponte grant of summary judgment, the Government stated:\n\n\n17\n For purposes of the FCA, “the terms ‘knowing’ and ‘knowingly’ (A) mean that a person, with\nrespect to information—(i) has actual knowledge of the information; (ii) acts in deliberate\nignorance of the truth or falsity of the information; or (iii) acts in in reckless disregard of the\ntruth or falsity of the information, and (B) no proof of specific intent to defraud is required.” 31\nU.S.C. § 3729(b).\n\n\n 50\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 51 of 57\n\n\n It is indefensible for the Court to grant summary judgment on the\n grounds that this case is just about a good faith disagreement between\n experts—and that the United States failed to present evidence that\n AseraCare knew or recklessly disregarded that its claims were false—\n when the Court bifurcated the trial and expressly excluded from Phase\n One any evidence of AseraCare’s knowledge of falsity.\n\nWe agree with the Government that before granting summary judgment, the\n\ndistrict court should have considered all the evidence, both in the trial record and\n\nthe summary judgment record, to determine whether a triable issue existed\n\nregarding falsity. Here is why we reach that conclusion.\n\n The Government had been prepared to introduce evidence to show\n\nAseraCare’s knowledge at trial, but was prevented from doing so by the district\n\ncourt’s decision, over the Government’s strong objections, to bifurcate the trial and\n\npreclude introduction of any evidence showing knowledge of falsity in Phase I.\n\nThe Government did, however, introduce evidence in that first phase that seems to\n\noffer some potential basis for inferring knowledge. Specifically, nine witnesses,\n\nwhose testimony was purportedly connected in time and location to the patients at\n\nissue, testified that AseraCare had a deliberate practice of not giving physicians\n\nrelevant, accurate, and complete information about patients whose certifications for\n\nhospice the doctors were being asked to sign. For example, one former director of\n\nclinical services in Decatur, Alabama, testified that when she declined to admit\n\nineligible patients to hospice, she was instructed to go back and find whatever she\n\n 51\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 52 of 57\n\n\nneeded to admit the patient. Further, she typically did not provide the certifying\n\nphysician with any clinical information, but usually just gave him a stack of papers\n\nto sign. Indeed, each of the nine former-employee witnesses reiterated these\n\nthemes in their testimony. In large part, because the Government had not\n\ndenominated this evidence as proof of falsity during this first phase—but instead as\n\nevidence of context—the district court refused to consider it as evidence of falsity\n\nin this post-verdict summary judgment phase.\n\n The Government also intended to offer at the second phase evidence from\n\nAseraCare’s internal and external auditors criticizing the company because the\n\ncertifying medical directors were not adequately involved in making initial\n\neligibility determinations and did not consistently receive medical information\n\nprior to the initial certification. In addition to the testimony of other former\n\nemployees, the Government also planned to offer testimony from a former\n\nAseraCare physician that employees did not defer to his clinical judgment that\n\ncertain patients were unentitled to hospice benefits, but instead proceeded to file\n\nthe claims. The district court declined to factor the above evidence into its\n\nevaluation of whether a jury question still remained concerning AseraCare’s\n\nknowledge that it was submitting claims that did not warrant the reimbursement of\n\nhospice benefits.\n\n\n\n 52\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 53 of 57\n\n\n The district court’s refusal to consider any of the above-described additional\n\nevidence on the question of falsity was largely based on the Government’s\n\nresponse to AseraCare’s discovery interrogatories inquiring what evidence the\n\nGovernment would offer on that issue. The district court emphasized that the\n\nGovernment had “painted itself into a corner by failing to disclose during\n\ndiscovery that it would use anything other than the testimony of Dr. Liao and\n\nmedical records to prove the falsity of the claims.”\n\n It is true that the Government denominated only the Liao testimony as\n\nevidence of falsity during the discovery period. But, in fairness to the\n\nGovernment, it disclosed all the above evidence in question during discovery,\n\nincluding the evidence that the district court declined to consider for post-verdict\n\nsummary judgment purposes. At the time of disclosure, the Government had no\n\nidea that the district court would later order the bifurcation of trial between falsity\n\nand knowledge phases, and it clearly assumed that all of its evidence would be\n\nheard by the jury in one proceeding, with no need to so starkly pigeon-hole the\n\ncategory into which a given piece of evidence might fit. As the Government noted\n\nin its opposition to bifurcation, with no contradiction by AseraCare, the elements\n\nof an FCA liability claim had “never been before been bifurcated by a federal\n\ndistrict court.” Nor had the Government ever anticipated such a decision, because,\n\naccording to it, such an order was “extraordinary, requiring the United States to\n 53\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 54 of 57\n\n\njump over an arbitrary hurdle that is without precedent . . . [because] [t]he elements\n\nof ‘falsity’ and ‘knowledge of falsity’ are not so distinct and separable that they\n\nmay be tried separately without injustice.”\n\n Moreover, the district court had rejected AseraCare’s initial motion for\n\nsummary judgment based on the latter’s argument that the mere disagreement of\n\nexperts is insufficient to imply falsity. At the time of trial, the court had already\n\ndeclined to apply this “reasonable physician” standard to the falsity analysis,\n\ndespite granting AseraCare’s § 1292(b) motion for review. As such, the\n\nGovernment’s failure to present its case in a manner consistent with such a\n\nstandard is understandable. Moreover, the court declined to give the instructions\n\nrequested by AseraCare to that effect and instead gave only the charge requested\n\nby the Government: “Claims to Medicare may be false if the provider seeks\n\npayment, or reimbursement, for health care that is not reimbursable. For a hospice\n\nprovider’s claims to Medicare to be reimbursable, the patient must be eligible for\n\nthe Medicare hospice benefit.”\n\n Accordingly, the Government, which had prepared and presented its case\n\nbased on all the above information, was never alerted to the possibility that the\n\nconceptual underpinnings of its case would shift so dramatically once it had won a\n\njury verdict on that theory. We emphasize that we do not criticize the district court\n\nfor its post-verdict change of mind about the appropriate standard for proving\n 54\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 55 of 57\n\n\nfalsity. To the contrary, this district court judge was diligent, conscientious, and\n\nthoughtful throughout the long and complex pre-trial proceedings and the eight-\n\nweek trial whose verdict she ultimately vacated. Given that expenditure of time\n\nand energy, it is commendable that the district court would consider starting over\n\nonce she became convinced that she had made a legal error.\n\n Nonetheless, under all these unusual circumstances, it is only fair that the\n\nGovernment be allowed to have summary judgment considered based on all the\n\nevidence presented at both the summary judgment and trial stages, and we direct\n\nthat this occur. When the goalpost gets moved in the final seconds of a game, the\n\nteam with the ball should, at the least, have one more opportunity to punch it into\n\nthe endzone.\n\n Having given the Government the green light to once again try to persuade\n\nthe district court that a triable issue exists on both falsity and knowledge, we\n\nemphasize that we do not know that this effort will succeed. For sure, to the extent\n\nthat a reasonable jury might credit the Government’s proffered evidence regarding\n\nAseraCare’s practices, that evidence suggests that AseraCare’s certification\n\nprocedures were seriously flawed. As noted, a former Director of Clinical Services\n\ntestified that one physician she worked with was in the habit of signing\n\ncertifications before reviewing any medical documentation whatsoever; clinical\n\nstaff typically “just gave him . . . a stack of papers to sign, [and] he just signed the\n 55\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 56 of 57\n\n\npapers.” Another former employee testified that signing certifications had become\n\nso rote for one physician that he “would nod off” while signing. This testimony\n\ncertainly raises questions regarding AseraCare’s certification process writ large.\n\nBut crucially, on remand the Government must be able to link this evidence of\n\nimproper certification practices to the specific 123 claims at issue in its case. Such\n\nlinkage is necessary to demonstrate both falsehood and knowledge. 18 See\n\nUrquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1045 (11th Cir. 2015) (“disregard\n\nof government regulations or failure to maintain proper internal procedures” are\n\nnot sufficient to demonstrate FCA violation); Carrel v. AIDS Healthcare\n\nFoundation, Inc., 898 F.3d 1267, 1277–78 (11th Cir. 2018) (a relator cannot prove\n\nthat an actual false claim was filed based only on a showing of general practices\n\nuntethered to that claim).\n\n\n18\n Alternatively, the Government could meet its burden under the falsity standard now adopted\nby the district court, and endorsed by this Court, if it could establish through expert testimony\nthat no reasonable physician reviewing the medical records at issue could have concluded that a\nparticular patient was terminally ill. The Court, however, is unaware that any such evidence\nexists. Indeed, as noted, Mary Jane Schultz, the former head of Palmetto’s medical review\ndepartment, testified that “two doctors using their clinical judgment could come to different\nconclusions about a patient's prognosis and neither be right or wrong.” Also, as noted, Dr. Liao\nhimself changed his opinion concerning the eligibility of certain patients over the course of the\nproceeding but testified at trial that both sets of opinions remained “accurate to a reasonable\ndegree of certainty.” To explain these reversals, Dr. Liao stated that he “was not the same\nphysician in 2013 as [he] was in 2010.” As the district court observed, if Dr. Liao can form\ncontradictory opinions based on the same medical records and yet claim not to have been wrong\non either occasion, then it is difficult to explain how his difference of opinion with AseraCare’s\nphysicians concerning other patients would demonstrate that no reasonable physician could agree\nwith AseraCare, absent some additional evidence to warrant that inference.\n\n 56\n\f Case: 16-13004 Date Filed: 09/09/2019 Page: 57 of 57\n\n\n For the above reasons, we VACATE the district court’s post-verdict grant of\n\nsummary judgment to AseraCare and REMAND for the court to reconsider that\n\nmatter based on the entirety of the evidence, not just that evidence presented at trial\n\nnor just the evidence denominated as being offered to prove falsity.\n\nV. CONCLUSION\n\n For the reasons explained above, we AFFIRM the district court’s grant of a\n\nnew trial. We, however, VACATE the post-verdict grant of summary judgment to\n\nAseraCare and REMAND for the district court to reconsider that decision in light\n\nof all the relevant evidence proffered by the Government.\n\n\n\n\n 57\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Aseracare, Inc.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-09-09\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 16-13004 Date Filed: 09/09/2019 Page: 1 of 57\\n\\n\\n [PUBLISH]\\n\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 16-13004\\n ________________________\\n\\n D.C. Docket No. 2:12-cv-00245-KOB\\n\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff - Appellant,\\n\\nversus\\n\\n\\nASERACARE, INC.,\\nGGNSC ADMINISTRATIVE SERVICES,\\nd.b.a. Golden Living,\\nf.k.a. Beverly Enterprises, Inc.,\\nHOSPICE PREFERRED CHOICE, INC.,\\nHOSPICE OF EASTERN CAROLINA, INC.,\\n\\n Defendants - Appellees.\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 2 of 57\\n\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Alabama\\n ________________________\\n\\n (September 9, 2019)\\n\\nBefore ROSENBAUM and JULIE CARNES, Circuit Judges, and\\nSCHLESINGER,∗ District Judge.\\n\\nJULIE CARNES, Circuit Judge:\\n\\n This case requires us to consider the circumstances under which a claim for\\n\\nhospice treatment under Medicare may be deemed “false” for purposes of the\\n\\nfederal False Claims Act. Defendants comprise a network of hospice facilities that\\n\\nroutinely bill Medicare for end-of-life care provided to elderly patients. In the\\n\\nunderlying civil suit, the Government alleged that Defendants had certified patients\\n\\nas eligible for Medicare’s hospice benefit, and billed Medicare accordingly, on the\\n\\nbasis of erroneous clinical judgments that those patients were terminally ill. Based\\n\\non the opinion of its expert witness, the Government contends that the patients at\\n\\nissue were not, in fact, terminally ill at the time of certification, meaning that\\n\\nAseraCare’s claims to the contrary were false under the False Claims Act.\\n\\n\\n\\n\\n∗ The Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of\\nFlorida, sitting by designation.\\n\\n\\n 2\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 3 of 57\\n\\n\\n As the case proceeded through discovery and a partial trial on the merits, the\\n\\ndistrict court confronted the following question: Can a medical provider’s clinical\\n\\njudgment that a patient is terminally ill be deemed false based merely on the\\n\\nexistence of a reasonable difference of opinion between experts as to the accuracy\\n\\nof that prognosis? The district court ultimately answered this question in the\\n\\nnegative and therefore granted summary judgment to AseraCare on the issue of\\n\\nfalsity.\\n\\n Upon careful review of the record and the relevant law, and with the benefit\\n\\nof oral argument, we concur with the district court’s ultimate determination that a\\n\\nclinical judgment of terminal illness warranting hospice benefits under Medicare\\n\\ncannot be deemed false, for purposes of the False Claims Act, when there is only a\\n\\nreasonable disagreement between medical experts as to the accuracy of that\\n\\nconclusion, with no other evidence to prove the falsity of the assessment. We do,\\n\\nhowever, think that the Government should have been allowed to rely on the entire\\n\\nrecord, not just the trial record, in making its case that disputed issues of fact,\\n\\nbeyond just the difference of opinion between experts, existed sufficient to warrant\\n\\ndenial of the district court’s post-verdict sua sponte reconsideration of summary\\n\\njudgment on the falsity question. We therefore affirm in part and remand in part.\\n\\n\\n\\n\\n 3\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 4 of 57\\n\\n\\nI. BACKGROUND 1\\n\\n Each year, more than a million Americans make the difficult decision to\\n\\nforgo curative care and turn instead to end-of-life hospice care, which is designed\\n\\nto relieve the pain and symptoms associated with terminal illness. See 79 Fed.\\n\\nReg. 50452, 50454–55 (Aug. 22, 2014). The federal government’s Medicare\\n\\nprogram makes such care affordable for a significant number of terminally ill\\n\\nindividuals. Defendants, collectively referred to as AseraCare, operate\\n\\napproximately sixty hospice facilities across nineteen states and admit around\\n\\n10,000 patients each year. Most of AseraCare’s patients are enrolled in Medicare.\\n\\nIn fact, from 2007 to 2012, Medicare payments composed approximately ninety-\\n\\nfive percent of AseraCare’s revenues. As such, AseraCare routinely prepares and\\n\\nsubmits claims for reimbursement under Medicare.\\n\\n This case began when three former AseraCare employees alleged that\\n\\nAseraCare had a practice of knowingly submitting unsubstantiated Medicare\\n\\nclaims in violation of the federal False Claims Act. We begin by setting out the\\n\\nrequirements hospice providers like AseraCare must meet in order to be entitled to\\n\\n\\n\\n\\n1\\n We derive the pertinent facts from the parties’ submissions, the summary judgment record, and\\nthe trial testimony presented in the proceeding below.\\n\\n\\n 4\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 5 of 57\\n\\n\\nhospice reimbursement and identifying the tools the Government uses to police\\n\\ncompliance with these requirements.\\n\\n A. The Medicare Hospice Benefit\\n\\n In order for a hospice claim to be eligible for Medicare reimbursement, the\\n\\npatient’s attending physician, if there is one, and the medical director of the\\n\\nhospice provider must “each certify in writing at the beginning of [each] period,\\n\\nthat the individual is terminally ill . . . based on the physician’s or medical\\n\\ndirector’s clinical judgment regarding the normal course of the individual’s\\n\\nillness.” 42 U.S.C. § 1395f(7)(A). “Terminally ill” means that the individual “has\\n\\na medical prognosis that the individual’s life expectancy is 6 months or less.” 42\\n\\nU.S.C. § 1395x(dd)(3)(A). Under the statute’s implementing regulations, a claim\\n\\nfor hospice reimbursement must conform to several requirements in order to be\\n\\npayable. Most notably for purposes of this appeal, the certification must be\\n\\naccompanied by “[c]linical information and other documentation that support the\\n\\nmedical prognosis,” and such support “must be filed in the medical record with the\\n\\nwritten certification.” 42 C.F.R. § 418.22(b)(2).\\n\\n An initial certification conforming to these requirements is valid for a period\\n\\nof ninety days. 42 U.S.C. § 1395f(7)(A). The patient must be recertified in a\\n\\nsimilar manner for each additional sixty- or ninety-day period during which he or\\n\\nshe remains in hospice. Id. While a life-expectancy prognosis of six months or\\n 5\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 6 of 57\\n\\n\\nless is a necessary condition for reimbursement, regulators recognize that\\n\\n“[p]redicting life expectancy is not an exact science.” 75 Fed. Reg. 70372, 70488\\n\\n(Nov. 17, 2010). Accordingly, the Medicare framework does not preclude\\n\\nreimbursement for periods of hospice care that extend beyond six months, as long\\n\\nas the patient’s eligibility is continually recertified. This framework also\\n\\nrecognizes that, in some cases, patients with an initial prognosis of terminality can\\n\\nimprove over time, and it allows such patients to exit hospice without losing their\\n\\nright to Medicare coverage to treat illness. Id. Thus, there is no statutory limit to\\n\\nthe number of periods for which a patient may be properly certified. 42 U.S.C.\\n\\n§ 1395d(d)(1) (establishing that hospice providers may collect reimbursement for\\n\\nan unlimited number of recertification periods).\\n\\n The Medicare program is overseen by the Centers for Medicare and\\n\\nMedicaid Services (“CMS”), a division of the Department of Health and Human\\n\\nServices. CMS operates locally through so-called Medicare Administrative\\n\\nContractors (“MACs”), which process claims from healthcare providers and make\\n\\npayment for eligible services. A majority of AseraCare’s Medicare claims are\\n\\nprocessed by a MAC called Palmetto GBA (“Palmetto”), which operates in the\\n\\nsoutheast United States.\\n\\n In preparing its claims for hospice reimbursement, AseraCare employs\\n\\ninterdisciplinary teams of skilled staff—including physicians, nurses,\\n 6\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 7 of 57\\n\\n\\npsychologists, social workers, and chaplains—that render services directly to\\n\\npatients and collectively make eligibility determinations. To guide this review,\\n\\nAseraCare professionals rely in part on documents called Local Coverage\\n\\nDeterminations (“LCDs”), which are issued by Palmetto’s medical directors.\\n\\nLCDs provide detailed lists of diagnostic guidance and clinical information that, if\\n\\ndocumented in a patient’s medical record, suggest that the patient has a life\\n\\nexpectancy of six months or less. LCDs are not clinical benchmarks or mandatory\\n\\nrequirements for hospice eligibility, however. Rather, they are designed to help\\n\\nclinical staff understand the type of information that should be considered prior to\\n\\nconcluding that a patient is terminally ill. The LCDs themselves explicitly state\\n\\nthat they are non-binding.\\n\\n Once AseraCare physicians reach a clinical judgment that a patient is\\n\\neligible for hospice care, AseraCare may begin providing treatment. It submits\\n\\nclaims to Palmetto for reimbursement only after care has been rendered. The trial\\n\\ntestimony of Mary Jane Schultz, a registered nurse and former director of\\n\\nPalmetto’s medical review team, clarified at trial the process by which Palmetto\\n\\nreviewed and paid claims for hospice coverage during the relevant time period of\\n\\n2007 to 2012. As Ms. Schultz described, the first round of claim review was\\n\\nconducted by an automated claim-processing system designed to ensure that no\\n\\ncritical information, such as a patient’s Medicare identification number, was\\n 7\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 8 of 57\\n\\n\\nmissing or invalid. If no critical information was missing, the system would then\\n\\ncheck for any “red flags” that might require further review of the claim—such as\\n\\nthe involvement of a particular provider, patient, or type of care that Palmetto staff\\n\\nbelieved may pose heightened eligibility risks. For instance, if Palmetto wished to\\n\\nconduct a targeted audit of claims submitted by a particular provider, it could\\n\\nprogram the automated system to pull all or a portion of those claims for additional\\n\\nreview before payment.\\n\\n If automated review uncovered no missing information or red flags, the\\n\\nsystem would process the claim directly for payment. As a result, Palmetto paid\\n\\nmany claims without directly reviewing the medical documentation underpinning\\n\\nthem. Where, on the other hand, a claim was flagged for heightened medical\\n\\nreview, Palmetto would immediately issue a request to the provider for medical\\n\\ndocumentation substantiating the patient’s terminal prognosis, such as notes from\\n\\nphysicians, nurses, and social workers and records of medications and treatments\\n\\nprescribed. A trained medical review team would then review the supporting\\n\\ndocumentation before determining whether the claim should be paid in full, paid in\\n\\npart, or denied. Like AseraCare’s medical staff, the medical review team\\n\\ncommonly uses the LCDs as guidelines in its assessment, but it is not required to\\n\\nrigidly apply their criteria. Instead, the review team also looks at the “whole\\n\\npicture” of information submitted with the claim.\\n 8\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 9 of 57\\n\\n\\n B. The False Claims Act\\n\\n The False Claims Act (“FCA”) serves as a mechanism by which the\\n\\nGovernment may police noncompliance with Medicare reimbursement standards\\n\\nafter payment has been made. The Act imposes civil liability—including treble\\n\\ndamages—on “any person who . . . knowingly presents, or causes to be presented,\\n\\na false or fraudulent claim for payment” to the federal government or who\\n\\n“knowingly makes, uses, or causes to be made or used, a false record or statement\\n\\nmaterial to a false or fraudulent claim.” 31 U.S.C. § 3729(a)(1)(A)–(B). To\\n\\nprevail on an FCA claim, the plaintiff must prove that the defendant (1) made a\\n\\nfalse statement, (2) with scienter, (3) that was material, (4) causing the\\n\\nGovernment to make a payment. Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039,\\n\\n1045 (11th Cir. 2015).\\n\\n Private citizens, called qui tam relators, are authorized to bring FCA suits on\\n\\nbehalf of the United States. 31 U.S.C. § 3730(b). The United States can, and\\n\\nfrequently does, intervene in qui tam suits to develop the civil case itself. Thus, to\\n\\nthe extent the Government concludes that it has reimbursed a hospice provider that\\n\\nknowingly submitted deficient claims, the Government can use the FCA cause of\\n\\naction to recoup payments and to penalize the provider.\\n\\nII. PROCEDURAL HISTORY\\n\\n A. Suit Against AseraCare Under the FCA\\n 9\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 10 of 57\\n\\n\\n The underlying case began in 2008, when three former AseraCare\\n\\nemployees, acting as qui tam relators, filed a complaint against AseraCare alleging\\n\\nsubmission of unsubstantiated hospice claims. Following a transfer of venue from\\n\\nthe Eastern District of Wisconsin to the Northern District of Alabama, the\\n\\nGovernment intervened and filed the operative complaint. In its complaint, the\\n\\nGovernment alleged that AseraCare knowingly employed reckless business\\n\\npractices that enabled it to admit, and receive reimbursement for, patients who\\n\\nwere not eligible for the Medicare hospice benefit “because it was financially\\n\\nlucrative,” thus “misspending” millions of Medicare dollars. The Government’s\\n\\ncomplaint described a corporate climate that pressured sales and clinical staff to\\n\\nmeet aggressive monthly quotas for patient intake and, in so doing, discouraged\\n\\nmeaningful physician involvement in eligibility determinations. More specifically,\\n\\nthe Government alleged that AseraCare “submitted documentation that falsely\\n\\nrepresented that certain Medicare recipients were ‘terminally ill’” when, in the\\n\\nGovernment’s view, they were not.\\n\\n In light of these allegations, the Government’s case falls under the “false\\n\\ncertification” theory of FCA liability. Under this theory, FCA liability may arise\\n\\nwhere a defendant falsely asserts or implies that it has complied with a statutory or\\n\\nregulatory requirement when, in actuality, it has not so complied. See Universal\\n\\nHealth Servs., Inc. v. United States ex rel. Escobar, 136 S. Ct. 1989, 1999 (2016).\\n 10\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 11 of 57\\n\\n\\n In developing its case, the Government began by identifying a universe of\\n\\napproximately 2,180 patients for whom AseraCare had billed Medicare for at least\\n\\n365 continuous days of hospice care. The Government then focused its attention\\n\\non a sample of 223 patients from within that universe. Through direct review of\\n\\nthese patients’ medical records and clinical histories, the Government’s primary\\n\\nexpert witness, Dr. Solomon Liao, identified 123 patients from the sample pool\\n\\nwho were, in Dr. Liao’s view, ineligible for the hospice benefit at the time\\n\\nAseraCare received reimbursement for their care. Should it prevail as to this\\n\\ngroup, the Government intended to extrapolate from the sample to impose further\\n\\nliability on AseraCare for a statistically valid set of additional claims within the\\n\\nbroader universe of hospice patients for whom AseraCare received Medicare\\n\\npayments.\\n\\n To supplement the testimony of Dr. Liao, the Government also sought to\\n\\ndevelop evidence that AseraCare’s broader business practices fostered and\\n\\npromoted improper certification procedures while deemphasizing clinical training\\n\\non terminal-illness prognostication. Several former AseraCare employees,\\n\\nincluding the qui tam relators, supported the Government’s narrative by describing\\n\\na process in which physicians merely rubber-stamped terminal-illness certifications\\n\\nwithout thoroughly examining the relevant medical records underlying them.\\n\\n Importantly, though, the Government’s false-claims allegations in this case\\n 11\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 12 of 57\\n\\n\\nwere narrowly circumscribed. There were no allegations that AseraCare billed for\\n\\nphantom patients, that certifications or medical documentation were forged, or that\\n\\nAseraCare employees lied to certifying physicians or withheld critical information\\n\\nregarding patient conditions. Indeed, there was no doubt in the proceeding below\\n\\nthat AseraCare possessed accurate and comprehensive documentation of each\\n\\npatient’s medical condition and that its certifications of terminal illness were\\n\\nsigned by the appropriate medical personnel. Rather, the Government asserted that\\n\\nits expert testimony—contextualized by broad evidence of AseraCare’s improper\\n\\nbusiness practices—would demonstrate that the patients in the sample pool were\\n\\nnot, as a medical fact, terminally ill at the time AseraCare collected reimbursement\\n\\nfor their hospice care. The sole question related to the sufficiency of the clinical\\n\\njudgments on which the claims were based.\\n\\n On this theory, the Government sought to recover damages under two\\n\\nsubsections of the FCA, 31 U.S.C. § 3729(a)(1)(A)2 and 31 U.S.C.\\n\\n§ 3729(a)(1)(B),3 and on claims of common-law unjust enrichment and mistaken\\n\\n\\n\\n2\\n “[A]ny person who . . . knowingly presents, or causes to be presented, a false or fraudulent\\nclaim for payment or approval . . . is liable to the United States Government . . . .” 31 U.S.C.\\n§ 3729(a)(1)(A).\\n3\\n “[A]ny person who . . . knowingly makes, uses, or causes to be made or used, a false record or\\nstatement material to a false or fraudulent claim . . . is liable to the United States\\nGovernment . . . .” 31 U.S.C. § 3729(a)(1)(B).\\n\\n\\n 12\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 13 of 57\\n\\n\\npayment.\\n\\n B. First Motion for Summary Judgment\\n\\n Following extensive discovery and expert analysis of relevant patient\\n\\nrecords, AseraCare moved for summary judgment on the ground that the\\n\\nGovernment failed to adduce evidence of the falsity of any disputed claims and\\n\\nfailed to show that AseraCare had any knowledge of the alleged falsity. Most\\n\\nnotably for purposes of this appeal, AseraCare put squarely before the district court\\n\\nthe question whether the Government’s medical-opinion evidence was sufficient to\\n\\nestablish the threshold element of falsity. To that point, AseraCare urged the\\n\\ndistrict court to embrace a “reasonable doctor” standard for the assessment of\\n\\nfalsity, which would state that, to avoid summary judgment in an action involving\\n\\nfalse claims for hospice reimbursement, the Government must show that a\\n\\nreasonable physician applying his or her clinical judgment could not have held the\\n\\nopinion that the patient at issue was terminally ill at the time of certification.4\\n\\n The district court found the “reasonable doctor” standard “appealing and\\n\\nlogical,” but noted that it had not been adopted by the Eleventh Circuit and\\n\\n4\\n AseraCare asked the district court to adopt the standard for falsity established by the Northern\\nDistrict of Illinois in a case with a similar fact pattern and posture. The court in that case\\ndismissed FCA claims against a for-profit hospice facility because relators failed to allege facts\\n“demonstrating that the certifying physician did not or could not have believed, based on his or\\nher clinical judgment, that the patient was eligible for hospice care.” United States ex rel.\\nGeschrey v. Generations Healthcare, LLC, 922 F. Supp. 2d 695, 703 (N.D. Ill. 2012).\\n\\n\\n 13\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 14 of 57\\n\\n\\ndeclined to apply it. The court ultimately denied AseraCare’s motion for summary\\n\\njudgment, concluding that fact questions remained regarding whether clinical\\n\\ninformation and other documentation in the relevant medical records supported the\\n\\ncertifications of terminal illness on which AseraCare’s claims were based.\\n\\n Following the denial of its motion for summary judgment, AseraCare moved\\n\\nto certify the following question for interlocutory appeal before this Court under\\n\\n28 U.S.C. § 1292(b):\\n\\n In a False Claims Act case against a hospice provider relating to the\\n eligibility of a patient for the Medicare hospice benefit, for the\\n Government to establish the falsity element under 31 U.S.C.\\n § 3729(a)(1), must it show that, in light of the patient’s clinical\\n information and other documentation, no reasonable physician could\\n have believed, based on his or her clinical judgment, that the patient\\n was eligible for the Medicare hospice benefit?\\n\\nThe district court certified the question for interlocutory appeal. We considered\\n\\nAseraCare’s motion for review but declined to consider the question at that stage\\n\\nof the proceeding.\\n\\n C. Bifurcation of Trial\\n\\n Subsequent to the denial of summary judgment, AseraCare moved the\\n\\ndistrict court to bifurcate trial under Federal Rule of Civil Procedure 42(b) into two\\n\\nphases: one phase on the falsity element of the FCA and a second phase on the\\n\\nFCA’s remaining elements and the Government’s common-law claims. The\\n\\nGovernment vehemently opposed the motion. It argued that the proposed\\n\\n 14\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 15 of 57\\n\\n\\nbifurcation was “extraordinary,” requiring the Government “to jump over an\\n\\narbitrary hurdle that is without precedent” because “the elements of ‘falsity’ and\\n\\n‘knowledge of falsity’ are not so distinct and separable that they may be tried\\n\\nseparately without injustice.” Indeed, the Government noted, the elements of FCA\\n\\nliability had “never before been bifurcated by a federal district court.” The\\n\\nGovernment further argued that bifurcation was unworkable because documentary\\n\\nand testimonial evidence that was probative in the falsity phase—“because it\\n\\nundermines the reliability of the [certifications of terminal illness]”—was “also\\n\\nprobative in the ‘knowledge of falsity’ phase because it shows AseraCare knew or\\n\\nshould have known that it was submitting false claims for non-terminally [sic]\\n\\npatients.”\\n\\n Nonetheless, the district court granted the motion in light of its concern that\\n\\nevidence pertinent to the knowledge element of the FCA would confuse the jury’s\\n\\nanalysis of the threshold question of whether the claims at issue were “false” in the\\n\\nfirst instance. The court noted that, while “pattern and practice” evidence showing\\n\\ndeficiencies in AseraCare’s admission and certification procedures could help\\n\\nestablish AseraCare’s knowledge of the alleged scheme to submit false claims—the\\n\\nsecond element of the Government’s case—the falsity of the claims “cannot be\\n\\ninferred by reference to AseraCare’s general corporate practices unrelated to\\n\\nspecific patients.” In the court’s view, allowing the Government to present\\n 15\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 16 of 57\\n\\n\\nknowledge evidence before falsity was determined would be unduly prejudicial to\\n\\nAseraCare, thus warranting separation of the knowledge and falsity elements.\\n\\n In accordance with this rationale, the district court “drew the line of\\n\\nadmissibility” in Phase One of trial “at anecdotal evidence about a specific, but\\n\\nunidentified, patient or event that would be impossible for the Defense to rebut.”\\n\\nThe court did, however, allow in Phase One anecdotal testimony regarding\\n\\nimproper clinical or corporate practices that “had a time and place nexus with the\\n\\n123 allegedly ineligible patients at issue.” Such testimony, in the court’s view,\\n\\nwould have been “highly probative and admissible in Phase One.” Indeed, in\\n\\nbifurcating trial, the court presumed—based on the Government’s own\\n\\nrepresentations—that the Government possessed and would present such evidence\\n\\nin Phase One. The court did allow in Phase One general testimony regarding\\n\\nAseraCare’s business practices and claim-submission process during the relevant\\n\\ntime period, but only to contextualize the falsity analysis and “afford[] the jury an\\n\\nopportunity to more fully understand the hospice process within AseraCare.” Such\\n\\nevidence was not, however, admissible to prove the falsity of the claims at issue. 5\\n\\n\\n\\n\\n5\\n The Government continues to complain on appeal that bifurcation of the trial was\\n“fundamentally unfair” and confused the issues, albeit it does not expressly challenge on appeal\\nthe district court’s decision.\\n\\n\\n 16\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 17 of 57\\n\\n\\n D. Phase One of Trial\\n\\n The first phase of the trial lasted approximately eight weeks and proceeded\\n\\nto a jury verdict largely against AseraCare on the question of falsity. During its\\n\\ncase in chief, the Government presented several days of testimony from Dr. Liao,\\n\\nwho explained that, in his expert opinion, the medical records of the patients at\\n\\nissue did not support AseraCare’s “terminal illness” certifications because they did\\n\\nnot reveal a life expectancy of six months or less. Dr. Liao made clear that his\\n\\ntestimony was a reflection of only his own clinical judgment based on his after-the-\\n\\nfact review of the supporting documentation he had reviewed. He conceded that\\n\\nhe was “not in a position to discuss whether another physician [was] wrong about a\\n\\nparticular patient’s eligibility. Nor could he say that AseraCare’s medical expert,\\n\\nwho disagreed with him concerning the accuracy of the prognoses at issue, was\\n\\nnecessarily “wrong.” Notably, Dr. Liao never testified that, in his opinion, no\\n\\nreasonable doctor could have concluded that the identified patients were terminally\\n\\nill at the time of certification. Instead, he only testified that, in his opinion, the\\n\\npatients were not terminally ill. Even more notable is the fact that Dr. Liao himself\\n\\nchanged his opinion concerning the eligibility of certain patients over the course of\\n\\nthe proceeding—deciding that some of the patients he had earlier concluded were\\n\\nnot terminally ill were in fact terminally ill. Nevertheless, he testified at trial that\\n\\nboth sets of contradictory opinions remained “accurate to a reasonable degree of\\n 17\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 18 of 57\\n\\n\\ncertainty.” To explain these reversals, Dr. Liao stated that he “was not the same\\n\\nphysician in 2013 as [he] was in 2010.”\\n\\n The Government also presented testimony of the relators and other\\n\\nAseraCare employees regarding AseraCare’s certification procedures, but, as\\n\\ndiscussed supra, this testimony was characterized as being offered solely to show\\n\\ncontext, not falsity. In rebuttal, AseraCare offered expert testimony that directly\\n\\ncontradicted Dr. Liao’s opinions.\\n\\n The parties’ expert witnesses disagreed along two lines. First and foremost,\\n\\nthey fundamentally differed as to how a doctor should analyze a patient’s life\\n\\nexpectancy for Medicare reimbursement purposes. The Government’s Dr. Liao\\n\\napplied what might be called a “checkbox approach” to assessing terminal illness:\\n\\nHe examined the patients’ records and compared them against Palmetto’s LCDs\\n\\n(and other, similar medical guidelines) for specific diagnoses, including\\n\\nAlzheimer’s, heart disease, cardiopulmonary disease, and “adult failure to thrive.”\\n\\nBy contrast, AseraCare’s experts considered but did not formulaically apply the\\n\\nLCD guidance in making their assessments. Instead, they took a “whole patient”\\n\\napproach, making prognoses based on the entirety of the patient’s history, the\\n\\nconfluence of ailments from which a patient may be suffering, and their own\\n\\nexperience with end-of-life care. AseraCare’s experts did not discount the LCD\\n\\n“criteria,” but—as the latter instruct— these experts did not consider themselves\\n 18\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 19 of 57\\n\\n\\ncompelled to conclude that a patient was ineligible merely because the patient had\\n\\nfailed to meet one of those indicia.\\n\\n The district court correctly stated in its instructions to the jury that the LCDs\\n\\nare “eligibility guidelines” that are not binding and should not be considered “the\\n\\nexact criteria used for determining” terminal illness. As such, the jury was not\\n\\npermitted to conclude that Dr. Liao’s testimony was more credible because he\\n\\nmade reference to the LCD criteria, or that AseraCare’s claims were false if they\\n\\nfailed to conform to those criteria. Nonetheless, the experts’ disagreement as to the\\n\\nproper analytical approach impacted their ultimate judgments as to each patient’s\\n\\nterminality.\\n\\n Because neither the checkbox approach nor the holistic approach to making\\n\\nterminal-illness prognoses is contrary to the law, the jury’s sole job at trial was to\\n\\nreview the medical records of each patient and decide which experts’ testimony\\n\\nseemed more persuasive on the question whether a particular patient should be\\n\\ncharacterized as “terminally ill” at the time of certification. To be clear, the\\n\\nGovernment never alleged that AseraCare’s doctors relied on medical\\n\\ndocumentation that was too thin, vague, or lacking in detail to reasonably\\n\\nsubstantiate their “clinical judgments” of terminal illness. Indeed, there is no\\n\\ndispute that each patient certification was supported by a meaningful set of medical\\n\\nrecords evidencing various serious and chronic ailments for which the patient was\\n 19\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 20 of 57\\n\\n\\nentitled to some level of treatment. The question before the jury was instead which\\n\\ndoctor’s interpretation of those medical records sounded more correct. In other\\n\\nwords, in this battle of experts, the jury was to decide which expert it thought to be\\n\\nmore persuasive, with the less persuasive opinion being deemed to be false. To\\n\\nguide that assessment, the district court provided the following instruction on\\n\\nfalsity: “A claim is ‘false’ if it is an assertion that is untrue when made or used.\\n\\nClaims to Medicare may be false if the provider seeks payment, or reimbursement,\\n\\nfor health care that is not reimbursable.”\\n\\n Ultimately, the expert testimony in this case revealed a fundamental\\n\\ndifference of professional opinion regarding the manner in which each patient’s\\n\\ncomplete medical picture contributed to his or her life expectancy at the time he or\\n\\nshe received hospice care. Both sets of experts looked at the same medical\\n\\ndocumentation, considered the same medical standards for the terminal-illness\\n\\ndetermination (even while differing as to the weight such standards should be\\n\\ngiven), and relied on their own experience as seasoned physicians specializing in\\n\\nend-of-life care. Dr. Liao testified that, in his professional opinion, the patients at\\n\\nissue were not likely to die within six months of the date on which they were\\n\\ncertified for hospice care. AseraCare’s experts arrived at opposite conclusions.\\n\\n As an illustration of this disagreement, consider the testimony of the\\n\\nGovernment’s Dr. Liao and AseraCare’s Dr. Gail Cooney regarding the patient\\n 20\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 21 of 57\\n\\n\\nElsin K., who was an AseraCare hospice patient for over a year and who ultimately\\n\\ndied in an AseraCare facility. Elsin was first admitted to hospice upon her\\n\\nphysician’s diagnosis of “debility,” also called “adult failure to thrive,” in which a\\n\\npatient experiences a general decline in health due to old age. Elsin experienced\\n\\nsubsequent periods of improvement and decline; she left hospice care and was\\n\\nrecertified on at least two occasions before her death.\\n\\n As with each patient at issue in this case, Dr. Liao’s assessment of Elsin’s\\n\\nhospice eligibility contrasted starkly with Dr. Cooney’s, even though there was no\\n\\ndispute as to Elsin’s underlying diagnoses. Dr. Liao noted that many of Elsin’s\\n\\nailments, including severe infections arising from a joint replacement, were\\n\\nchronic and had recurred for many years. He also noted that she did not\\n\\ndemonstrate the level of physical debility that published medical criteria typically\\n\\nassociate with terminal patients. On the basis of his medical review, he described\\n\\nElsin as struggling with chronic illness but “overall rather stable, if not\\n\\nimproving,” and thus lacking a prognosis of six months or less to live at the time of\\n\\nher certifications and recertifications. Dr. Cooney, the defense expert, also\\n\\nrecognized that Elsin “had been sick for a long time,” but she saw in the medical\\n\\nrecords a trend of steady physical and mental decline, decreased mobility, and\\n\\nincreasing pain. Elsin’s physical and psychological ailments, viewed in\\n\\ncombination with one another, complicated the picture of Elsin’s overall health and\\n 21\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 22 of 57\\n\\n\\ncontributed to Dr. Cooney’s judgment that Elsin was terminally ill during each\\n\\nrelevant time period. In the Government’s view, it was properly within the\\n\\npurview of the jury to decide which doctor’s judgment was correct and, to the\\n\\nextent the jury found Dr. Liao’s prognosis to be more persuasive, to find that\\n\\nAseraCare had thereby submitted a false statement when it filed a claim based on a\\n\\nprognosis that differed from Dr. Liao’s.\\n\\n At the conclusion of the parties’ cases, the court instructed the jury to\\n\\nanswer special interrogatories regarding the prognoses of each of the 123 patients\\n\\nat issue. The jury ultimately found that AseraCare had submitted false claims for\\n\\n104 patients of the 123 patients at issue during the relevant time periods.\\n\\n E. Grant of New Trial and Second Motion for Summary Judgment\\n\\n Following the partial verdict in this first phase of trial, AseraCare moved for\\n\\njudgment as a matter of law, arguing that the court had articulated the wrong legal\\n\\nstandard in its instructions to the jury. The district court agreed. In the court’s\\n\\nown words, “[a]s the court worked through AseraCare’s challenges,” it “became\\n\\nconvinced that it had committed reversible error in the instructions it provided to\\n\\nthe jury.” It ultimately concluded that proper jury instructions would have advised\\n\\nthe jury of two “key points of law” that the court had not previously\\n\\nacknowledged: (1) that the FCA’s falsity element requires proof of an objective\\n\\nfalsehood; and (2) that a mere difference of opinion between physicians, without\\n 22\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 23 of 57\\n\\n\\nmore, is not enough to show falsity. AseraCare had advocated for this legal\\n\\nstandard since the start of trial, but only after hearing all the evidence had the court\\n\\nbecome “convinced” that “a difference of opinion is not enough.” The court\\n\\nultimately concluded that the failure to instruct the jury on these points was\\n\\nreversible error and that the only way to cure the prejudice caused thereby was to\\n\\norder a new trial.\\n\\n The court then went one step further, deciding to consider summary\\n\\njudgment sua sponte under Federal Rule of Civil Procedure 56(f)(3). Specifically,\\n\\nit informed the parties that it intended to consider “whether the Government, under\\n\\nthe correct legal standard, has sufficient admissible evidence of more than just a\\n\\ndifference of opinion to show that the claims at issue are objectively false as a\\n\\nmatter of law.” The court gave the parties an opportunity to brief the issue,\\n\\nadvising that:\\n\\n The Government’s proof under the FCA for the falsity element would\\n fail as a matter of law if all the Government has as evidence of falsity\\n in the second trial is Dr. Liao’s opinion based on his clinical judgment\\n and the medical records that he contends do not support the prognoses\\n for the 123 patients at issue in Phase One.\\n\\n In its summary-judgment briefing, the Government argued that it was\\n\\nprocedurally improper for the court to raise summary judgment sua sponte after\\n\\nalready deciding to grant a new trial. The district court rejected this argument, and\\n\\nthe Government does not revive the challenge on appeal.\\n 23\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 24 of 57\\n\\n\\n Following briefing and a hearing, the court granted summary judgment in\\n\\nAseraCare’s favor on the basis of the court’s newly adopted legal standard. The\\n\\ncourt concluded, “[a]fter careful review of all [the parties’] submissions and the\\n\\nPhase One [trial] record, . . . that the Government has failed to point the court to\\n\\nany admissible evidence to prove falsity other than Dr. Liao’s opinion that the\\n\\nmedical records for the 123 patients at issue did not support the Certifications of\\n\\nTerminal Illness” that were submitted for Medicare reimbursement. Because\\n\\n“[t]he Government [ ] presented no evidence of an objective falsehood for any of\\n\\nthe patients at issue,” it could not prove the falsity element of its FCA claim as a\\n\\nmatter of law. The court thus granted summary judgment in AseraCare’s favor.\\n\\n The Government appeals the district court’s summary judgment order and its\\n\\ngrant of a new trial, contending that the legal standard the court ultimately adopted\\n\\nreflected a “deeply flawed” understanding of the falsity element of an FCA claim.\\n\\nThe Government thus asks this Court to reject the legal standard for falsity that the\\n\\ndistrict court adopted, reverse the district court’s grant of summary judgment and\\n\\norder of a new trial, and reinstate the jury’s Phase One findings: namely, that the\\n\\nGovernment successfully proved falsity as to several of the claims at issue.\\n\\nIII. STANDARD OF REVIEW\\n\\n This Court reviews the district court’s grant of summary judgment de novo,\\n\\nviewing all the evidence and drawing all reasonable inferences in favor of the non-\\n 24\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 25 of 57\\n\\n\\nmoving party. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir.\\n\\n2005). By contrast, we review a district court’s ruling on a motion for a new trial\\n\\nfor abuse of discretion. Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th\\n\\nCir. 1984).\\n\\nIV. DISCUSSION\\n\\n This appeal requires us to consider how Medicare’s requirements for hospice\\n\\neligibility—which are centered on the subjective “clinical judgment” of a\\n\\nphysician as to a patient’s life expectancy—intersect with the FCA’s falsity\\n\\nelement. Under this Court’s precedent, “Medicare claims may be false if they\\n\\nclaim reimbursement for services or costs that either are not reimbursable or were\\n\\nnot rendered as claimed.” United States ex rel. Walker v. R&F Props. of Lake Cty.,\\n\\nInc., 433 F.3d 1349, 1356 (11th Cir. 2005). There is no allegation that the hospice\\n\\nservices AseraCare provided were not rendered as claimed. Thus, the sole\\n\\nquestion is whether the claims AseraCare submitted were reimbursable under the\\n\\nMedicare framework for hospice care—that is, whether AseraCare’s certifications\\n\\nthat patients were terminally ill satisfied Medicare’s statutory and regulatory\\n\\nrequirements for reimbursement. If not, the claims are capable of being “false” for\\n\\nFCA purposes.\\n\\n Thus framed, our primary task on appeal is to clarify the scope of the\\n\\nhospice eligibility requirements, which are set out in the federal Medicare statute,\\n 25\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 26 of 57\\n\\n\\n42 U.S.C. § 1395f, and its implementing regulation, 42 C.F.R. § 418.22. Our\\n\\nsecondary task is to determine whether the district court’s formulation of the falsity\\n\\nstandard was consistent with the law and properly applied. Neither this Court nor\\n\\nany of our sister circuits has considered the standard for falsity in the context of the\\n\\nMedicare hospice benefit, where the controlling condition of reimbursement is a\\n\\nmatter of clinical judgment. After careful review of the relevant law, the\\n\\nunderlying record, and the considerations raised by the parties and the amici\\n\\ncuriae, we agree that the instruction given to the jury was inadequate and agree\\n\\nwith the general sense of the legal standard embraced by the district court after the\\n\\nverdict.\\n\\n A. Legal Standard for Falsity of Hospice Claims\\n\\n The Government argues that the district court’s initial jury instructions—that\\n\\n“[a] claim is ‘false’ if it is an assertion that is untrue when made or used” and that\\n\\n“[c]laims to Medicare may be false if the provider seeks payment, or\\n\\nreimbursement, for health care that is not reimbursable”—comprised a complete\\n\\nand correct statement of the legal standard for falsity. As applied to this case, the\\n\\nGovernment argues that it can show falsity by producing expert testimony that a\\n\\npatient’s medical records do not support a terminal-illness prognosis as a factual\\n\\nmatter. Where the parties present competing expert views on a patient’s prognosis,\\n\\nthe “falsity” of the defendant’s prognosis is put to a jury.\\n 26\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 27 of 57\\n\\n\\n AseraCare contests the Government’s characterization of the statutory and\\n\\nregulatory framework, arguing that the determinative inquiry in an eligibility\\n\\nanalysis is whether the certifying physician exercised genuine clinical judgment\\n\\nregarding a patient’s prognosis and further arguing that the accuracy of such\\n\\njudgment is not susceptible to being proven true or false as a factual matter.\\n\\n Given the dearth of controlling case law regarding the intersection of the\\n\\nFCA and the Medicare hospice benefit and the parties’ vigorous disagreement on\\n\\nthe fundamental points of law, we begin by defining the contours of the hospice-\\n\\neligibility framework and clarifying the circumstances under which a claim\\n\\nviolates the requirements for reimbursement. We then consider the ways in which\\n\\na hospice claim might be deemed “false” for purposes of the FCA.\\n\\n 1. Hospice Eligibility Framework\\n\\n Our analysis begins with the language of the relevant statute and regulations.\\n\\nSee United States v. Aldrich, 566 F.3d 976, 978 (11th Cir. 2009) (“[T]he ‘starting\\n\\npoint’ of statutory interpretation is ‘the language of the statute itself.’”) (citing\\n\\nRandall v. Loftsgaarden, 478 U.S. 647, 656 (1986)). “To determine the plain\\n\\nmeaning of a statute or regulation, we do not look at one word or term in isolation,\\n\\nbut rather look to the entire statutory or regulatory context.” Sec. & Exch. Comm’n\\n\\nv. Levin, 849 F.3d 995, 1003 (11th Cir. 2017).\\n\\n\\n\\n 27\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 28 of 57\\n\\n\\n In relevant part, the statute states that payment for hospice care provided to\\n\\nan individual may be made only if:\\n\\n (i) in the first 90-day period . . . (I) the individual’s attending\\n physician . . . and (II) the medical director (or physician\\n member of the interdisciplinary group described in [42 U.S.C.\\n § 1395x(dd)(2)(B)]) of the hospice program providing . . . the\\n care, each certify in writing at the beginning of the period, that\\n the individual is terminally ill (as defined in [42 U.S.C.\\n § 1395x(dd)(3)(A)]) based on the physician’s or medical\\n director’s clinical judgment regarding the normal course of the\\n individual’s illness, [and]\\n\\n (ii) in a subsequent 90- or 60-day period, the medical director or\\n physician . . . recertifies at the beginning of the period that the\\n individual is terminally ill based on such clinical judgment.\\n\\n42 U.S.C. § 1395f(a)(7)(A) (emphasis added). 6 “Terminally ill” means that the\\n\\nindividual “has a medical prognosis that the individual’s life expectancy is 6\\n\\n\\n\\n6\\n The statute contains three additional requirements, each of which was in place during the\\nrelevant time period of 2007 through 2012:\\n\\n (B) a written plan for providing hospice care with respect to such individual has been\\n established . . . and is periodically reviewed by the individual’s attending physician\\n and by the medical director (and the interdisciplinary group described in 42 U.S.C.\\n § 1395x(dd)(2)(B)]) of the hospice program;\\n\\n (C) such care is being or was provided pursuant to such plan of care; [and]\\n\\n (D) on and after January 1, 2011 . . . a hospice physician or nurse practitioner has a face-\\n to-face encounter with the individual to determine continued eligibility . . . prior to\\n the 180th-day recertification and each subsequent recertification . . . and attests that\\n such visit took place . . . .\\n\\n42 U.S.C. § 1395f(a)(7). The Government does not allege that AseraCare failed to meet any of\\nthese additional requirements.\\n\\n\\n 28\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 29 of 57\\n\\n\\nmonths or less.” 42 U.S.C. § 1395x(dd)(3)(A). In any case, “no payment may be\\n\\nmade . . . for any expenses incurred . . . which are not reasonable and necessary for\\n\\nthe palliation or management of terminal illness.” 42 U.S.C. § 1395y(a)(1)(C).\\n\\n The implementing regulations echo the language of the statute, reiterating\\n\\nthat each written certification of terminal illness “will be based on the physician’s\\n\\nor medical director’s clinical judgment regarding the normal course of the\\n\\nindividual’s illness.” 42 C.F.R. § 418.22(b). See also 42 C.F.R. § 418.22(a)(1)\\n\\n(stating “general rule” that hospice provider “must obtain written certification of\\n\\nterminal illness” for each claimed period of care).\\n\\n The regulations go on to identify several requirements for the submission of\\n\\nclaims. First, and most significant to this appeal, “[c]linical information and other\\n\\ndocumentation that support the medical prognosis must accompany the\\n\\ncertification and must be filed in the medical record with the written certification.”\\n\\n42 C.F.R. § 418.22(b)(2). Second, the certifying physician must include with the\\n\\ncertification “a brief narrative explanation of the clinical findings that supports a\\n\\nlife expectancy of 6 months or less.” 42 C.F.R. § 418.22(b)(3). This narrative\\n\\nexplanation “must reflect the patient’s individual clinical circumstances and cannot\\n\\ncontain check boxes or standard language used for all patients.” 42 C.F.R.\\n\\n\\n\\n\\n 29\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 30 of 57\\n\\n\\n§ 418.22(b)(3)(iv).7 And third, in deciding whether to certify a patient as\\n\\nterminally ill, a physician is obligated to consider several factors: the patient’s\\n\\nprimary terminal condition and related diagnoses; current subjective and objective\\n\\nmedical findings; current medication and treatment orders; and information about\\n\\nthe medical management of any conditions unrelated to the terminal illness.\\n\\n42 C.F.R. § 418.102(b); 42 C.F.R. § 418.25(b) (establishing that, “[i]n reaching a\\n\\ndecision to certify that the patient is terminally ill, the hospice medical direct must\\n\\nconsider at least” the diagnosis of the patient, other health conditions, and\\n\\n“[c]urrent clinically relevant information supporting all diagnoses”). See also 78\\n\\nFed. Reg. 48234, 48247 (Aug. 7, 2013) (“[T]he certification of terminal illness is\\n\\nbased in the unique clinical picture of the individual that is reflected in the\\n\\ncomprehensive assessment and other clinical records and documentation . . . .”); 79\\n\\nFed. Reg. 50452, 50471 (Aug. 22, 2014) (noting that, in deciding whether to\\n\\nrecertify a patient who has not shown measurable decline, the physician “must\\n\\nassess and evaluate the full clinical picture” of the patient).\\n\\n The language of the statute and implementing regulations makes plain that\\n\\nthe clinical judgment of the patient’s attending physician (or the provider’s medical\\n\\n\\n\\n7\\n The requirement of a brief narrative explanation accompanying the certification was added to\\nthe regulations on October 1, 2009. See 74 Fed. Reg. 39384, 39398–400, 39413 (Aug. 6, 2009).\\n\\n\\n 30\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 31 of 57\\n\\n\\ndirector, as the case may be) lies at the center of the eligibility inquiry. Under this\\n\\nlanguage, a patient is eligible for the Medicare hospice benefit if the appropriate\\n\\nphysician makes a clinical judgment that the patient is terminally ill in light of the\\n\\npatient’s complete medical picture, as evidenced by the patient’s medical records.\\n\\n Importantly, none of the relevant language states that the documentary\\n\\nrecord underpinning a physician’s clinical judgment must prove the prognosis as a\\n\\nmatter of medical fact. Indeed, CMS has recognized in crafting the implementing\\n\\nregulations that “[p]redicting life expectancy is not an exact science.” 75 Fed.\\n\\nReg. 70372, 70448 (Nov. 17, 2010). See also 79 Fed. Reg. at 50470 (“[W]e also\\n\\nhave recognized the challenges in prognostication” and therefore expect “that the\\n\\ncertifying physicians will use their best clinical judgment.”). 8 Nor does this\\n\\nframework state or imply that the patient’s medical records must unequivocally\\n\\ndemonstrate to an unaffiliated physician, reviewing the records after the fact, that\\n\\nthe patient was likely to die within six months of the time the certifying\\n\\nphysician’s clinical judgment was made. Rather, the framework asks a physician\\n\\n\\n\\n\\n8\\n We have held in the context of FCA proceedings that “guidance issued by the governmental\\nagency charged with administrating the regulatory scheme,” including the Medicare regulatory\\nscheme, “can be consulted to understand the meaning of that regulation.” United States ex rel.\\nWalker v. R&F Props. of Lake Cty., Inc., 433 F.3d 1349, 1357 (11th Cir. 2005).\\n\\n\\n 31\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 32 of 57\\n\\n\\nresponsible for the patient’s care to exercise his or her judgment as to the proper\\n\\ninterpretation of the patient’s medical records.\\n\\n The Government seeks to elevate the significance of the regulation’s\\n\\nsupporting-documentation requirement, asserting that eligibility “turns on”\\n\\nwhether the clinical information and other documentation accompanying a\\n\\ncertification of terminal illness support, as a factual matter, the physician’s\\n\\ncertification. Specifically, the Government maintains that the testimony of Dr.\\n\\nLiao, which “was designed to assist the jury in understanding the medical records”\\n\\nfor each patient, created “a factual dispute as to whether ‘[c]linical information and\\n\\nother documentation’ in the medical record ‘support[ed] the medical prognosis’ of\\n\\na life expectancy of six months or less.” (Citing 42 C.F.R. § 418.22(b)(2).)\\n\\n We conclude that the Government’s framing of the eligibility inquiry is not\\n\\nconsistent with the text or design of the law. The relevant regulation requires only\\n\\nthat “clinical information and other documentation that support the medical\\n\\nprognosis . . . accompany the certification” and “be filed in the medical record.”\\n\\n42 C.F.R. § 418.22(b)(2) (emphases added). This “medical prognosis” is, itself,\\n\\n“based on the physician’s . . . clinical judgment.” 42 C.F.R. § 418.22(b). To\\n\\nconclude that the supporting documentation must, standing alone, prove the\\n\\nvalidity of the physician’s initial clinical judgment would read more into the legal\\n\\nframework than its language allows. Read in the context of the statute and\\n 32\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 33 of 57\\n\\n\\nregulations, the requirement that supporting documentation “accompany” the claim\\n\\nis designed to address CMS’s mandate that “there must be a clinical basis for a\\n\\ncertification.” 79 Fed. Reg. at 50470 (noting that, although “certification is based\\n\\non a clinical judgment,” this “does not negate the fact that there must be a clinical\\n\\nbasis for a certification”). That is, the physician’s clinical judgment dictates\\n\\neligibility as long as it represents a reasonable interpretation of the relevant\\n\\nmedical records.\\n\\n We also note that, had Congress or CMS intended the patient’s medical\\n\\nrecords to objectively demonstrate terminal illness, it could have said so. Yet,\\n\\nCongress said nothing to indicate that the medical documentation presented with a\\n\\nclaim must prove the veracity of the clinical judgment on an after-the-fact review.\\n\\nAnd CMS’s own choice of the word “support”—instead of, for example,\\n\\n“demonstrate” or “prove”—does not imply the level of certitude the Government\\n\\nwishes to attribute to it. Cf. Davidson v. Capital One Bank (USA), N.A., 797 F.3d\\n\\n1309, 1316 (11th Cir. 2015) (We “presume that Congress said what it meant and\\n\\nmeant what it said.”) (quotation marks omitted).\\n\\n More broadly, CMS’s rulemaking commentary signals that well-founded\\n\\nclinical judgments should be granted deference. As noted supra, CMS has\\n\\nrepeatedly emphasized that “[p]redicting life expectancy is not an exact science.”\\n\\n75 Fed. Reg. at 70448. See also 79 Fed. Reg. at 50470 (same). And in clarifying\\n 33\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 34 of 57\\n\\n\\nthe process for reporting a patient’s “principal hospice diagnosis” on a hospice\\n\\nclaim, CMS stated: “We believe that the certifying physicians have the best\\n\\nclinical experience, competence and judgment to make the determination that an\\n\\nindividual is terminally ill.” 78 Fed. Reg. at 48247. Furthermore, in response to\\n\\npublic comment, CMS removed the term “criteria” from a proposed regulation\\n\\ndefining the certification requirements, wishing “to remove any implication that\\n\\nthere are specific CMS clinical benchmarks in this rule that must be met in order to\\n\\ncertify terminal illness.” 73 Fed. Reg. 32088, 32138 (June 5, 2008). While there is\\n\\nno question that clinical judgments must be tethered to a patient’s valid medical\\n\\nrecords, it is equally clear that the law is designed to give physicians meaningful\\n\\nlatitude to make informed judgments without fear that those judgments will be\\n\\nsecond-guessed after the fact by laymen in a liability proceeding.\\n\\n The Government cautions that a narrow reading of the eligibility framework\\n\\n“would entitle hospice providers to reimbursement for services provided to any\\n\\nindividual, regardless of medical condition, assuming the provider could find a\\n\\nphysician willing to sign the certification.” This point again ignores that the\\n\\nphysician’s clinical judgment, informed by the patient’s medical records, is the\\n\\nthreshold requirement for eligibility. A physician cannot, as the Government\\n\\nsuggests, hold a clinical judgment under the eligibility framework that disregards\\n\\nthe patient’s underlying medical condition. See, e.g., 42 C.F.R. § 418.102(b)\\n 34\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 35 of 57\\n\\n\\n(identifying factors physicians must consider when arriving at clinical judgments\\n\\nregarding terminal illness, including “subjective and objective medical findings”\\n\\nregarding the patient’s condition). Such a clinical judgment would clearly be\\n\\nillegitimate under the law.\\n\\n The Government further warns that, under our reading of the framework, “if\\n\\na physician certifies a patient as terminally ill, CMS is required to reimburse the\\n\\nhospice care provider unless it can determine that no other reviewer of the patient’s\\n\\nmedical records could possibly conclude the patient was terminally ill.” But, as the\\n\\nGovernment elsewhere notes, CMS is statutorily prohibited from reimbursing\\n\\nproviders for services “which are not reasonable and necessary for the palliation or\\n\\nmanagement of terminal illness.” 42 U.S.C. § 1395y(a)(1)(C). See also 79 Fed\\n\\nReg. 50452, 50470 (Aug. 22, 2014) (explaining that CMS retains a well-\\n\\nestablished right to review claims for hospice reimbursement and to deny claims\\n\\nthat it does not consider to be “reasonable and necessary” under the statutory\\n\\nstandard). The Government’s argument that our reading of the eligibility\\n\\nframework would “tie CMS’s hands” and “requir[e] improper reimbursements” is\\n\\ncontrary to the plain design of the law.\\n\\n 2. Falsity in this case under the FCA\\n\\n Having identified the contours of the Medicare framework, it becomes clear\\n\\nthat there are two separate representations embedded in each claim for hospice\\n 35\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 36 of 57\\n\\n\\nreimbursement: a representation by a physician to AseraCare that the patient is\\n\\nterminally ill in the physician’s clinical judgment and a representation by\\n\\nAseraCare to Medicare that such clinical judgment has been obtained and that the\\n\\npatient is therefore eligible. As such, this case requires us to distinguish between\\n\\ntwo possible species of “falsity.” The first relates to the legitimacy of a\\n\\nphysician’s clinical judgment. The second relates to the legitimacy of AseraCare’s\\n\\nstatement that a clinical judgment has been properly made.\\n\\n Under the Government’s false-certification theory in this case, AseraCare\\n\\n“submitted documentation that falsely represented that certain Medicare recipients\\n\\nwere ‘terminally ill’” when, in the Government’s view, they were not. There is no\\n\\nallegation that AseraCare submitted claims that were not, in fact, based on a\\n\\nphysician’s properly formed clinical judgment, nor is there an allegation that\\n\\nAseraCare failed to abide by each component of the claim requirements. 9 The\\n\\nGovernment’s allegations focus solely on the accuracy of the physician’s clinical\\n\\njudgment regarding terminality. If, the theory goes, AseraCare represented to\\n\\nMedicare that a patient was “terminally ill” based on a physician’s clinical\\n\\n\\n\\n9\\n We might, for instance, envision a viable FCA suit alleging that a hospice provider failed to\\nobtain any clinical judgment at all, or obtained a clinical judgment from someone other than the\\npatient’s attending physician or the provider’s medical director, or fabricated the certification\\nitself. No such facts are alleged here.\\n\\n\\n 36\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 37 of 57\\n\\n\\njudgment, and the Government later persuades a jury that this clinical judgment\\n\\nwas wrong, then AseraCare’s representation was, in turn, “false.” This “falsity”\\n\\nopens the door to FCA liability. Thus, the Government’s FCA case hangs entirely\\n\\non the following question: When can a physician’s clinical judgment regarding a\\n\\npatient’s prognosis be deemed “false”?\\n\\n In light of our foregoing discussion, we concur with the district court’s post-\\n\\nverdict conclusion that “physicians applying their clinical judgment about a\\n\\npatient’s projected life expectancy could disagree, and neither physician [ ] be\\n\\nwrong.” Indeed, the Government’s own witness—Mary Jane Schultz, the former\\n\\nhead of Palmetto’s medical review department—conceded at trial that “two doctors\\n\\nusing their clinical judgment could come to different conclusions about a patient's\\n\\nprognosis and neither be right or wrong.” Nothing in the statutory or regulatory\\n\\nframework suggests that a clinical judgment regarding a patient’s prognosis is\\n\\ninvalid or illegitimate merely because an unaffiliated physician reviewing the\\n\\nrelevant records after the fact disagrees with that clinical judgment. Nor does the\\n\\nlaw suggest that a hospice provider has failed to comply with Medicare’s\\n\\nrequirements for hospice reimbursement if the only flaw in its claim is an absence\\n\\nof certitude that, in light of the relevant medical records, the patient will die within\\n\\nsix months. The legal framework signals, and CMS itself has acknowledged, that\\n\\nno such certitude can be expected of physicians in the practice of treating end-of-\\n 37\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 38 of 57\\n\\n\\nlife illness. All the legal framework asks is that physicians exercise their best\\n\\njudgment in light of the facts at hand and that they document their rationale.\\n\\n It follows that when a hospice provider submits a claim that certifies that a\\n\\npatient is terminally ill “based on the physician’s or medical director’s clinical\\n\\njudgment regarding the normal course of the individual’s illness,” 42 U.S.C.\\n\\n§ 1395f(7), 42 C.F.R. § 418.22(b), the claim cannot be “false”—and thus cannot\\n\\ntrigger FCA liability—if the underlying clinical judgment does not reflect an\\n\\nobjective falsehood.\\n\\n Objective falsehood can be shown in a variety of ways. Where, for instance,\\n\\na certifying physician fails to review a patient’s medical records or otherwise\\n\\nfamiliarize himself with the patient’s condition before asserting that the patient is\\n\\nterminal, his ill-formed “clinical judgment” reflects an objective falsehood. The\\n\\nsame is true where a plaintiff proves that a physician did not, in fact, subjectively\\n\\nbelieve that his patient was terminally ill at the time of certification. A claim may\\n\\nalso reflect an objective falsehood when expert evidence proves that no reasonable\\n\\nphysician could have concluded that a patient was terminally ill given the relevant\\n\\nmedical records. In each of these examples, the clinical judgment on which the\\n\\nclaim is based contains a flaw that can be demonstrated through verifiable facts.\\n\\n By contrast, a reasonable difference of opinion among physicians reviewing\\n\\nmedical documentation ex post is not sufficient on its own to suggest that those\\n 38\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 39 of 57\\n\\n\\njudgments—or any claims based on them—are false under the FCA. A properly\\n\\nformed and sincerely held clinical judgment is not untrue even if a different\\n\\nphysician later contends that the judgment is wrong. Cf. Omnicare, Inc. v.\\n\\nLaborers Dist. Council Const. Indus. Pension Fund, 135 S. Ct. 1318, 1327 (2015)\\n\\n(holding that “a sincere statement of pure opinion is not an ‘untrue statement of\\n\\nmaterial fact’” under the Securities Act of 1933, “regardless whether an investor\\n\\ncan ultimately prove the belief wrong”).\\n\\n Accordingly, in order to properly state a claim under the FCA in the context\\n\\nof hospice reimbursement, a plaintiff alleging that a patient was falsely certified for\\n\\nhospice care must identify facts and circumstances surrounding the patient’s\\n\\ncertification that are inconsistent with the proper exercise of a physician’s clinical\\n\\njudgment. Where no such facts or circumstances are shown, the FCA claim fails\\n\\nas a matter of law.\\n\\n In so holding, we agree with the district court’s conclusion that, in order to\\n\\nshow objective falsity as to a claim for hospice benefits, the Government must\\n\\nshow something more than the mere difference of reasonable opinion concerning\\n\\nthe prognosis of a patient’s likely longevity. 10 And although we appear to be the\\n\\n\\n\\n10\\n Several district courts within and outside the Eleventh Circuit have embraced comparable\\nreasoning in cases alleging FCA liability on the basis of clinical judgments of terminal illness.\\nSee, e.g., United States ex rel. Wall v. Vista Hospice Care, Inc., 2016 WL 3449833, at *17 (N.D.\\n\\n 39\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 40 of 57\\n\\n\\nfirst circuit court to consider the precise question at issue here, a number of\\n\\nopinions from our sister circuits lends support to our conclusion that the\\n\\nGovernment must show an objective falsity. 11\\n\\n\\n\\n\\nTex. June 20, 2016) (“Because a physician must use his or her clinical judgment to determine\\nhospice eligibility, an FCA claim about the exercise of that judgment must be predicated on the\\npresence of an objectively verifiable fact at odds with the exercise of that judgment, not a matter\\nof questioning subjective clinical analysis.”); United States ex rel. Fowler v. Evercare Hospice,\\nInc., 2015 WL 5568614, at *9 (D. Colo. Sept. 21, 2015) (observing that, if Government’s\\ncomplaint had been “based entirely on disagreements with [the provider’s] certifying\\nphysicians,” the complaint “would be insufficient to state a claim”); United States ex rel.\\nGeschrey v. Generations Healthcare, LLC, 922 F. Supp. 2d 695, 703 (N.D. Ill. 2012) (dismissing\\nFCA claims because “[r]elators have not alleged facts demonstrating that the certifying physician\\ndid not or could not have believed, based on his or her clinical judgment, that the patient was\\neligible for hospice care”). But see Druding v. Care Alternatives, Inc., 164 F. Supp. 3d 621, 623\\n(D.N.J. 2016) (holding that where plaintiffs alleged that patients were ineligible for hospice\\nbecause they did not meet LCD criteria, claims were “legally false . . . because the claim[s] did\\nnot include sufficient clinical facts in the patient’s medical records to justify a terminal\\nprognosis”).\\n11\\n See United States ex rel. Yannacopoulos v. General Dynamics, 652 F.3d 818, 836 (7th Cir.\\n2011) (stating that “[a] statement may be deemed ‘false’ for purposes of the False Claims Act\\nonly if the statement presents ‘an objective falsehood’”) (citing United States ex rel. Wilson v.\\nKellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008)); United States ex rel. Loughren\\nv. Unum Grp., 613 F.3d 300, 310 (1st Cir. 2010), (explaining that an opinion may qualify as a\\nfalse statement for purposes of the FCA where the speaker “knows facts ‘which would preclude\\nsuch an opinion’”) (quoting United States ex rel. Siewick v. Jamieson Science and Engineering,\\nInc., 214 F.3d 1372, 1378 (D.C. Cir. 2000)); Wilson, 525 F.3d at 376–77 (holding that “[t]o\\nsatisfy [the] first element of an FCA claim, the statement or conduct alleged must represent an\\nobjective falsehood” and “imprecise statements or differences in interpretation growing out of a\\ndisputed legal question are [ ] not false under the FCA”) (quotation omitted); United States ex\\nrel. Burlbaw v. Orenduff, 548 F.3d 931, 959 (10th Cir. 2008) (“At a minimum the FCA requires\\nproof of an objective falsehood.”); Harrison v. Westinghouse Savannah River Co., 176 F.3d 776,\\n792 (4th Cir. 1999) (noting that opinions or estimates can be “false” under the FCA if their\\nspeaker knows they are not supported by the facts); Hooper v. Lockheed Martin Corp., 688 F.3d\\n1037, 1047–49 (9th Cir. 2012) (same). Cf. Omnicare, Inc. v. Laborers Dist. Council Const.\\nIndus. Pension Fund, 135 S. Ct. 1318, 1323, 1326–27 (2015) (holding in the context of securities\\nfraud statutes that a statement of opinion can be “false” if the opinion did not reflect the\\nspeaker’s actual belief at the time it was given).\\n\\n 40\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 41 of 57\\n\\n\\n The Government urges that the standard we adopt today improperly\\n\\n“usurp[s] the role of the jury” by precluding the jury from determining, based on\\n\\nexpert testimony, the accuracy of the clinical judgments at issue. In support of this\\n\\ncontention, the Government relies heavily on this Court’s reasoning in United\\n\\nStates ex rel. Walker v. R&F Properties of Lake County, Inc., 433 F.3d 1349 (11th\\n\\nCir. 2005). But Walker is clearly distinguishable and does not control our analysis.\\n\\n In Walker, an FCA relator contended that her employer, a medical-clinic\\n\\noperator, billed Medicare for services rendered by non-physicians as if those\\n\\nservices had been rendered “incident to the service of a physician,” as the relevant\\n\\nstatute required. See id. at 1353. In reality, the relator alleged, services had been\\n\\nprovided by nurse practitioners or physician assistants without any physician\\n\\ninvolvement. Id. The defendant-clinic did not dispute that physicians were not\\n\\npresent in the clinic when services were rendered. Id. at 1354. It argued instead\\n\\nthat these claims could not have been false as a matter of law because the meaning\\n\\nof “incident to the service of a physician” was “vague and subject to reasonable\\n\\ninterpretations other than that championed by Walker.” Id. Specifically, the clinic\\n\\nargued that it interpreted “incident to the service of a physician” to cover services\\n\\nthat were rendered by non-physicians as long as a physician was available by pager\\n\\nor telephone, even if not actually physically present in the office. Id. The district\\n\\n\\n\\n 41\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 42 of 57\\n\\n\\ncourt agreed, finding the statute ambiguous and defendant’s interpretation of the\\n\\nstatute reasonable. Id.\\n\\n This Court reversed. Walker, 433 F.3d at 1356. The question presented was\\n\\nwhether a claim based on a reasonable interpretation of an ambiguous statutory\\n\\nterm could never be deemed “false,” or whether instead the meaning of the\\n\\nambiguous term—and the corresponding falsity of the claims made thereunder—\\n\\ncould potentially pose factual questions that should be put to a factfinder. Id.\\n\\nGiven the particular facts of the case before us, our Court adopted the latter\\n\\napproach. Specifically, the relator presented evidence from the Medicare Carrier’s\\n\\nmanual, Medicare bulletins, and seminar programs to “support a finding that, in the\\n\\nMedicare community, the language of the statute was understood to mean that a\\n\\nphysician had to be physically present in the office suite” in order to justify\\n\\nreimbursement for the medical service provided by a non-physician. Id. at 1356–\\n\\n57. We concluded that this evidence created a jury question as to both whether the\\n\\nMedicare regulation required more physician involvement with a patient than the\\n\\ndefendant clinic had provided and whether the defendant knew of this requirement.\\n\\nId. at 1358.\\n\\n In Walker, the eligibility criterion at issue was subject to multiple\\n\\ninterpretations because its language was ambiguous, yet ultimately only one of the\\n\\ntwo possible interpretations could be deemed correct. By contrast, the key\\n 42\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 43 of 57\\n\\n\\neligibility criterion at issue here—“terminally ill”—presents, by design, a question\\n\\nof debatable clinical judgment that may not, in all circumstances, lend itself to just\\n\\none determination as to the proper exercise of that judgment. As the district court\\n\\nnoted below, asking the jury to decide whether medical records supported a finding\\n\\nof “terminal illness” put the jury in the position of evaluating, and second-\\n\\nguessing, the clinical judgment of the certifying physician. This is not the role the\\n\\nfactfinder was playing in Walker; indeed, it is a role requiring medical knowledge\\n\\nand expertise that Congress has clearly reserved for physicians in the hospice-\\n\\nbenefit context. Walker therefore does not compel the conclusion that eligibility\\n\\nrequirements that hinge on clinical judgment present jury questions simply because\\n\\nthey are susceptible to differing opinions, each of which could be reasonable.\\n\\n The Government has also filed supplemental authority, citing to out-of-\\n\\ncircuit appellate cases that it says establish that a mere difference of medical\\n\\nopinion can be sufficient to show that a statement is false. We find these cases\\n\\ndistinguishable. In United States v. Paulus, 894 F.3d 267 (6th Cir. 2018), the\\n\\nphysician-defendant had been convicted of healthcare fraud based on his\\n\\nperformance of allegedly unnecessary coronary stent procedures. In arguing for\\n\\nreversal of his conviction, the defendant contended that he based his decision to\\n\\nperform the procedures on his interpretation of angiogram tests showing a high\\n\\ndegree of blockage in the patients’ arteries, and thus his medical judgment on this\\n 43\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 44 of 57\\n\\n\\npoint represented merely an opinion that could neither be truthful nor false. The\\n\\nGovernment contended that, to the contrary, the defendant had lied when he said\\n\\nthat he interpreted the angiograms as showing a level of coronary blockage that\\n\\nwould warrant inserting a stent into the heart, and it offered substantial expert\\n\\ntestimony disputing that the level of blockage shown on the angiogram test was at\\n\\nthe level the defendant asserted it was.\\n\\n The Sixth Circuit12 agreed with the defendant that “[o]rdinarily, facts are the\\n\\nonly item that fits in [the false statement] category; opinions—when given\\n\\nhonestly—are almost never false . . . .There is no such thing as a false idea.” Id. at\\n\\n275 (citations and internal quotation marks omitted). Nevertheless, the court\\n\\ncontinued, opinions have “never been completely insulated from scrutiny. At the\\n\\nvery least, opinions may trigger liability for fraud when they are not honestly held\\n\\nby their maker, or when the speaker knows of facts that are fundamentally\\n\\nincompatible with his opinion.” Id. The court then cited with apparent approval\\n\\nthe district court opinion in the present case for the proposition that “certain good-\\n\\n\\n\\n\\n12\\n The Paulus court indicated its intention to clarify the standard underlying its earlier decision\\nin United States v. Persaud, 866 F.3d 371 (6th Cir. 2017), which the Government has also cited\\nin the present case. Paulus, 894 F.3d at 275.\\n\\n\\n 44\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 45 of 57\\n\\n\\nfaith medical diagnoses by a doctor cannot be false.” 13 Id. In the case before it,\\n\\nhowever, the Paulus court noted that “coronary artery blockage actually exists as\\n\\nan aspect of reality,” meaning that an assertion about the degree of blockage can be\\n\\nobjectively true or false. Id. at 276 (quotation marks omitted). And it concluded\\n\\nthat the Government’s expert testimony was sufficient to support an inference that\\n\\nthe defendant had lied when he reported readings of the angiograms that the\\n\\nexperts said were simply not true: “[W]e think it is clear that Paulus was convicted\\n\\nfor misrepresenting facts, not giving opinions.” Id.\\n\\n Moreover, whereas in the present case the Government’s expert witness\\n\\ndeclined to conclude that Asercare’s physicians had lied about their clinical\\n\\njudgment or even that their judgments were unreasonable or wrong 14—as opposed\\n\\nto just different from what the Government’s expert opined—in Paulus, it appears\\n\\nclear that the Government’s experts there were not so charitable. The Paulus court\\n\\nnoted that the Government had claimed that “Paulus repeatedly and systematically\\n\\nsaw one thing on the angiogram and consciously wrote down another, and then\\n\\n\\n\\n13\\n The court stated, “see also United States v. AseraCare, Inc., 176 F. Supp. 3d 1282 (N.D. Ala.\\n2016) (holding that certain good-faith medical diagnoses by a doctor cannot be false.”) Paulus,\\n894 F.3d at 275.\\n14\\n As noted supra, the former head of the Palmetto medical review team, called as a Government\\nwitness, also conceded at trial that “two doctors using their clinical judgment could come to\\ndifferent conclusions about a patient's prognosis and neither be right or wrong.”\\n\\n\\n 45\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 46 of 57\\n\\n\\nused that misinformation to perform and bill unnecessary procedures,” and it\\n\\nexplained that “[h]owever difficult it might be for a cardiology expert to prove that\\n\\nhis colleague was lying about what he saw on a scan,” it was up to the jury to\\n\\ndecide the reliability of that testimony. Id. at 267–77. In short, the Government’s\\n\\nexpert testimony in Paulus appeared to suggest that no reasonable doctor could\\n\\ninterpret the scan as had Paulus and that Paulus was actually lying. Thus, Paulus is\\n\\nnot supportive of the Government’s contentions here.15\\n\\n\\n\\n15\\n The Government here also cites United States ex rel. Polukoff v. St. Mark’s Hospital, 895\\nF.3d 730 (10th Cir. 2018), an FCA case in which the district court had granted the defendant’s\\nmotion to dismiss on the ground that his medical judgment about the need for cardiac PFO\\nclosure procedures to prevent future strokes in his patients was an opinion that was not subject to\\nbeing deemed true or false. The Tenth Circuit reversed, found a plausible allegation of falsity,\\nand directed that the case proceed to discovery. The circuit court noted that the Government had\\nalleged that the applicable Medicare statute authorized reimbursement only when the he PFO\\nprocedure was reasonable and necessary for the treatment of an illness; that there is agreement in\\nthe medical community that a PFO closure is not medically necessary except where there is a\\nconfirmed diagnosis of a recurrent stroke; that the applicable guidelines allow for consideration\\nof the procedure only when the patient has had two or more strokes and that the guidelines do not\\n“contemplate the potential for PFO closures” if the patient has not had a prior stroke; that the\\ndefendant claimed to believe that the procedure should be performed prophylactically to cure\\nmigraine headaches or to prevent strokes even if the patient had never before had a stroke; and,\\nknowing that Medicare would not pay on that basis, the defendant falsely represented that the\\nprocedure was being performed based on the indications set forth in the guidelines. Id. at 736,\\n737. In addition, a fellow physician alleged that he had witnessed the defendant perform an\\nunnecessary procedure and actually create the problem the surgery was intended to remedy by\\npuncturing intact septa in the patients. Id. at 738.\\n\\nObviously, the above facts are quite different from those alleged in this case. It is true that the\\nTenth Circuit opinion held that regardless of the physician’s opinion to the contrary, he will be\\ndeemed to have made a false statement when claiming reimbursement if the medical procedure is\\ndetermined to have not been reasonable or necessary. “We thus hold that a doctor’s certification\\nto the government that a procedure is ‘reasonable and necessary’ is ‘false’ under the FCA if the\\nprocedure was not reasonable and necessary under the government’s definition of the phrase.”\\n\\n 46\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 47 of 57\\n\\n\\n The Government expresses concern that a requirement of objective\\n\\nfalsehood will produce a troubling under-inclusion problem: that is, by holding\\n\\nthat an FCA claim fails as a matter of law if the plaintiff proves nothing more than\\n\\na reasonable difference of opinion as to the patient’s prognosis, hospice providers\\n\\nwith sloppy or improper admission practices may evade FCA liability so long as\\n\\nthey can argue after the fact that their physicians’ clinical judgments were\\n\\njustifiable. That may well be. To be sure, it will likely prove more challenging for\\n\\nan FCA plaintiff to present evidence of an objective falsehood than to find an\\n\\nexpert witness willing to testify to a contrasting clinical judgment regarding cold\\n\\nmedical records.\\n\\n But if this is a problem, it is one for Congress or CMS to solve. In deciding\\n\\nhow to craft the hospice eligibility requirements, Congress and CMS could have\\n\\nimposed a more rigid set of criteria for eligibility determinations that would have\\n\\nminimized the role of clinical judgment. Instead, they were careful to place the\\n\\nphysician’s clinical judgment at the center of the inquiry. Indeed, CMS has\\n\\nconsidered and expressly declined to impose defined criteria that would govern the\\n\\nphysician’s exercise of judgment. See 73 Fed. Reg. 32088, 32138 (June 5, 2008).\\n\\n\\n\\nId. at 742. As set out in text, however, the hospice-benefit provision at issue here, by design,\\nlooks to whether a physician has based a recommendation for hospice treatment on a genuinely-\\nheld clinical opinion as to a patient’s likely longevity.\\n\\n 47\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 48 of 57\\n\\n\\n In any event, absent a showing of an objective and knowing falsehood, the\\n\\nFCA is an inappropriate instrument to serve as the Government’s primary line of\\n\\ndefense against questionable claims for reimbursement of hospice benefits. For the\\n\\nabove reasons, we agree that the district court’s jury instruction concerning falsity\\n\\nwas lacking and that a new trial was warranted to allow the giving of a more\\n\\ncomplete charge: specifically, a charge that would convey that the mere difference\\n\\nof reasonable opinion between physicians, without more, 16 as to the prognosis for a\\n\\npatient seeking hospice benefits does not constitute an objective falsehood. We\\n\\ntherefore AFFIRM the district court’s grant of a new trial.\\n\\n B. Grant of Summary Judgment\\n\\n Deciding that the district court acted correctly in determining that a new trial\\n\\nwas warranted—with a revised instruction to the jury concerning falsity—does not\\n\\nend our review of this case. Instead, as noted in the procedural discussion above,\\n\\nthe district court went further and, after granting a new trial, it then sua sponte\\n\\ngranted summary judgment to AseraCare. The court reasoned as follows. Given\\n\\nits new position on the standard for determining falsity—that falsity cannot be\\n\\nestablished based merely on a reasonable disagreement between experts as to\\n\\n\\n\\n16\\n Should there be another trial on this matter, we leave to the district court and the parties the\\ntask of fleshing out just what that “more” needs to include.\\n\\n\\n 48\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 49 of 57\\n\\n\\nwhether clinical records in a patient’s file warranted a prognosis of a terminal\\n\\nillness that would likely result in the patient’s death within six months—the district\\n\\ncourt indicated that it would hear from the Government whether the court record\\n\\ncontained any other evidence sufficient to create a jury question as to whether\\n\\nAseraCare had made an objectively false representation when claiming\\n\\nreimbursement for hospice benefits it had provided. Following that response and\\n\\nconcluding that the Government’s evidence of falsity consisted only of Dr. Liao’s\\n\\ntestimony indicating his disagreement with the prognosis arrived at by AseraCare\\n\\nfor most of the patient files he reviewed, the district court found that the\\n\\nGovernment’s evidence of falsity was insufficient to allow it to proceed further.\\n\\nFor that reason, the court granted summary judgment.\\n\\n Leaving aside the question whether the substance of an opinion, by itself,\\n\\ncan ever be deemed to constitute an objective falsity, the parties agree that an\\n\\nopinion can be considered objectively false if the speaker does not actually hold\\n\\nthat opinion. See Omnicare, Inc. v. Laborers Dist. Council Const. Indus. Pension\\n\\nFund, 135 S. Ct. 1318, 1323, 1326–27 (2015) (holding in the context of securities\\n\\nfraud statutes that a statement of opinion can be “false” if the opinion did not\\n\\nreflect the speaker’s actual belief at the time it was given). Further, in examining\\n\\nwhether a physician’s clinical judgment was truly communicated, the latter must\\n\\nfirst have actually exercised such judgment. If it can be shown that the physician\\n 49\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 50 of 57\\n\\n\\nnever considered the underlying records supporting the prognosis at issue, but\\n\\ninstead rubber-stamped whatever file was put in front of him, then the physician\\n\\nhas offered no clinical judgment. Moreover, an opinion can enter falsifiable\\n\\nterritory when it is based on information that the physician knew, or had reason to\\n\\nknow, was incorrect. Finally, if no reasonable physician would think that a patient\\n\\nhad a terminal illness based on the evidence before that physician, then falsity can\\n\\nbe inferred, as well as the existence of a knowing violation.\\n\\n With the above thoughts in mind, the Government argues that the district\\n\\ncourt took too constricted a view of the evidence upon which a determination of\\n\\nfalsity could be made by a jury when it refused to consider other evidence from the\\n\\nfirst phase of the trial that the Government asserts tended to show knowledge of\\n\\nthe falsity of the claim, as well as evidence that the Government intended to\\n\\npresent in the second phase of the trial to further show AseraCare’s alleged\\n\\nawareness 17 that it was submitting claims that did not reflect a physician’s good\\n\\nfaith clinical judgment and prognosis for each patient. In its opposition to the sua\\n\\nsponte grant of summary judgment, the Government stated:\\n\\n\\n17\\n For purposes of the FCA, “the terms ‘knowing’ and ‘knowingly’ (A) mean that a person, with\\nrespect to information—(i) has actual knowledge of the information; (ii) acts in deliberate\\nignorance of the truth or falsity of the information; or (iii) acts in in reckless disregard of the\\ntruth or falsity of the information, and (B) no proof of specific intent to defraud is required.” 31\\nU.S.C. § 3729(b).\\n\\n\\n 50\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 51 of 57\\n\\n\\n It is indefensible for the Court to grant summary judgment on the\\n grounds that this case is just about a good faith disagreement between\\n experts—and that the United States failed to present evidence that\\n AseraCare knew or recklessly disregarded that its claims were false—\\n when the Court bifurcated the trial and expressly excluded from Phase\\n One any evidence of AseraCare’s knowledge of falsity.\\n\\nWe agree with the Government that before granting summary judgment, the\\n\\ndistrict court should have considered all the evidence, both in the trial record and\\n\\nthe summary judgment record, to determine whether a triable issue existed\\n\\nregarding falsity. Here is why we reach that conclusion.\\n\\n The Government had been prepared to introduce evidence to show\\n\\nAseraCare’s knowledge at trial, but was prevented from doing so by the district\\n\\ncourt’s decision, over the Government’s strong objections, to bifurcate the trial and\\n\\npreclude introduction of any evidence showing knowledge of falsity in Phase I.\\n\\nThe Government did, however, introduce evidence in that first phase that seems to\\n\\noffer some potential basis for inferring knowledge. Specifically, nine witnesses,\\n\\nwhose testimony was purportedly connected in time and location to the patients at\\n\\nissue, testified that AseraCare had a deliberate practice of not giving physicians\\n\\nrelevant, accurate, and complete information about patients whose certifications for\\n\\nhospice the doctors were being asked to sign. For example, one former director of\\n\\nclinical services in Decatur, Alabama, testified that when she declined to admit\\n\\nineligible patients to hospice, she was instructed to go back and find whatever she\\n\\n 51\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 52 of 57\\n\\n\\nneeded to admit the patient. Further, she typically did not provide the certifying\\n\\nphysician with any clinical information, but usually just gave him a stack of papers\\n\\nto sign. Indeed, each of the nine former-employee witnesses reiterated these\\n\\nthemes in their testimony. In large part, because the Government had not\\n\\ndenominated this evidence as proof of falsity during this first phase—but instead as\\n\\nevidence of context—the district court refused to consider it as evidence of falsity\\n\\nin this post-verdict summary judgment phase.\\n\\n The Government also intended to offer at the second phase evidence from\\n\\nAseraCare’s internal and external auditors criticizing the company because the\\n\\ncertifying medical directors were not adequately involved in making initial\\n\\neligibility determinations and did not consistently receive medical information\\n\\nprior to the initial certification. In addition to the testimony of other former\\n\\nemployees, the Government also planned to offer testimony from a former\\n\\nAseraCare physician that employees did not defer to his clinical judgment that\\n\\ncertain patients were unentitled to hospice benefits, but instead proceeded to file\\n\\nthe claims. The district court declined to factor the above evidence into its\\n\\nevaluation of whether a jury question still remained concerning AseraCare’s\\n\\nknowledge that it was submitting claims that did not warrant the reimbursement of\\n\\nhospice benefits.\\n\\n\\n\\n 52\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 53 of 57\\n\\n\\n The district court’s refusal to consider any of the above-described additional\\n\\nevidence on the question of falsity was largely based on the Government’s\\n\\nresponse to AseraCare’s discovery interrogatories inquiring what evidence the\\n\\nGovernment would offer on that issue. The district court emphasized that the\\n\\nGovernment had “painted itself into a corner by failing to disclose during\\n\\ndiscovery that it would use anything other than the testimony of Dr. Liao and\\n\\nmedical records to prove the falsity of the claims.”\\n\\n It is true that the Government denominated only the Liao testimony as\\n\\nevidence of falsity during the discovery period. But, in fairness to the\\n\\nGovernment, it disclosed all the above evidence in question during discovery,\\n\\nincluding the evidence that the district court declined to consider for post-verdict\\n\\nsummary judgment purposes. At the time of disclosure, the Government had no\\n\\nidea that the district court would later order the bifurcation of trial between falsity\\n\\nand knowledge phases, and it clearly assumed that all of its evidence would be\\n\\nheard by the jury in one proceeding, with no need to so starkly pigeon-hole the\\n\\ncategory into which a given piece of evidence might fit. As the Government noted\\n\\nin its opposition to bifurcation, with no contradiction by AseraCare, the elements\\n\\nof an FCA liability claim had “never been before been bifurcated by a federal\\n\\ndistrict court.” Nor had the Government ever anticipated such a decision, because,\\n\\naccording to it, such an order was “extraordinary, requiring the United States to\\n 53\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 54 of 57\\n\\n\\njump over an arbitrary hurdle that is without precedent . . . [because] [t]he elements\\n\\nof ‘falsity’ and ‘knowledge of falsity’ are not so distinct and separable that they\\n\\nmay be tried separately without injustice.”\\n\\n Moreover, the district court had rejected AseraCare’s initial motion for\\n\\nsummary judgment based on the latter’s argument that the mere disagreement of\\n\\nexperts is insufficient to imply falsity. At the time of trial, the court had already\\n\\ndeclined to apply this “reasonable physician” standard to the falsity analysis,\\n\\ndespite granting AseraCare’s § 1292(b) motion for review. As such, the\\n\\nGovernment’s failure to present its case in a manner consistent with such a\\n\\nstandard is understandable. Moreover, the court declined to give the instructions\\n\\nrequested by AseraCare to that effect and instead gave only the charge requested\\n\\nby the Government: “Claims to Medicare may be false if the provider seeks\\n\\npayment, or reimbursement, for health care that is not reimbursable. For a hospice\\n\\nprovider’s claims to Medicare to be reimbursable, the patient must be eligible for\\n\\nthe Medicare hospice benefit.”\\n\\n Accordingly, the Government, which had prepared and presented its case\\n\\nbased on all the above information, was never alerted to the possibility that the\\n\\nconceptual underpinnings of its case would shift so dramatically once it had won a\\n\\njury verdict on that theory. We emphasize that we do not criticize the district court\\n\\nfor its post-verdict change of mind about the appropriate standard for proving\\n 54\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 55 of 57\\n\\n\\nfalsity. To the contrary, this district court judge was diligent, conscientious, and\\n\\nthoughtful throughout the long and complex pre-trial proceedings and the eight-\\n\\nweek trial whose verdict she ultimately vacated. Given that expenditure of time\\n\\nand energy, it is commendable that the district court would consider starting over\\n\\nonce she became convinced that she had made a legal error.\\n\\n Nonetheless, under all these unusual circumstances, it is only fair that the\\n\\nGovernment be allowed to have summary judgment considered based on all the\\n\\nevidence presented at both the summary judgment and trial stages, and we direct\\n\\nthat this occur. When the goalpost gets moved in the final seconds of a game, the\\n\\nteam with the ball should, at the least, have one more opportunity to punch it into\\n\\nthe endzone.\\n\\n Having given the Government the green light to once again try to persuade\\n\\nthe district court that a triable issue exists on both falsity and knowledge, we\\n\\nemphasize that we do not know that this effort will succeed. For sure, to the extent\\n\\nthat a reasonable jury might credit the Government’s proffered evidence regarding\\n\\nAseraCare’s practices, that evidence suggests that AseraCare’s certification\\n\\nprocedures were seriously flawed. As noted, a former Director of Clinical Services\\n\\ntestified that one physician she worked with was in the habit of signing\\n\\ncertifications before reviewing any medical documentation whatsoever; clinical\\n\\nstaff typically “just gave him . . . a stack of papers to sign, [and] he just signed the\\n 55\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 56 of 57\\n\\n\\npapers.” Another former employee testified that signing certifications had become\\n\\nso rote for one physician that he “would nod off” while signing. This testimony\\n\\ncertainly raises questions regarding AseraCare’s certification process writ large.\\n\\nBut crucially, on remand the Government must be able to link this evidence of\\n\\nimproper certification practices to the specific 123 claims at issue in its case. Such\\n\\nlinkage is necessary to demonstrate both falsehood and knowledge. 18 See\\n\\nUrquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1045 (11th Cir. 2015) (“disregard\\n\\nof government regulations or failure to maintain proper internal procedures” are\\n\\nnot sufficient to demonstrate FCA violation); Carrel v. AIDS Healthcare\\n\\nFoundation, Inc., 898 F.3d 1267, 1277–78 (11th Cir. 2018) (a relator cannot prove\\n\\nthat an actual false claim was filed based only on a showing of general practices\\n\\nuntethered to that claim).\\n\\n\\n18\\n Alternatively, the Government could meet its burden under the falsity standard now adopted\\nby the district court, and endorsed by this Court, if it could establish through expert testimony\\nthat no reasonable physician reviewing the medical records at issue could have concluded that a\\nparticular patient was terminally ill. The Court, however, is unaware that any such evidence\\nexists. Indeed, as noted, Mary Jane Schultz, the former head of Palmetto’s medical review\\ndepartment, testified that “two doctors using their clinical judgment could come to different\\nconclusions about a patient's prognosis and neither be right or wrong.” Also, as noted, Dr. Liao\\nhimself changed his opinion concerning the eligibility of certain patients over the course of the\\nproceeding but testified at trial that both sets of opinions remained “accurate to a reasonable\\ndegree of certainty.” To explain these reversals, Dr. Liao stated that he “was not the same\\nphysician in 2013 as [he] was in 2010.” As the district court observed, if Dr. Liao can form\\ncontradictory opinions based on the same medical records and yet claim not to have been wrong\\non either occasion, then it is difficult to explain how his difference of opinion with AseraCare’s\\nphysicians concerning other patients would demonstrate that no reasonable physician could agree\\nwith AseraCare, absent some additional evidence to warrant that inference.\\n\\n 56\\n\\f Case: 16-13004 Date Filed: 09/09/2019 Page: 57 of 57\\n\\n\\n For the above reasons, we VACATE the district court’s post-verdict grant of\\n\\nsummary judgment to AseraCare and REMAND for the court to reconsider that\\n\\nmatter based on the entirety of the evidence, not just that evidence presented at trial\\n\\nnor just the evidence denominated as being offered to prove falsity.\\n\\nV. CONCLUSION\\n\\n For the reasons explained above, we AFFIRM the district court’s grant of a\\n\\nnew trial. We, however, VACATE the post-verdict grant of summary judgment to\\n\\nAseraCare and REMAND for the district court to reconsider that decision in light\\n\\nof all the relevant evidence proffered by the Government.\\n\\n\\n\\n\\n 57\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4490,"cells":{"id":{"kind":"number","value":4659566,"string":"4,659,566"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Patricia I. Ermini v. Mike Scott"},"decision_date":{"kind":"string","value":"2019-09-10"},"docket_number":{"kind":"string","value":"18-11220"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"NEWSOM, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-11220 Date Filed: 09/10/2019 Page: 1 of 29\\n\\n\\n [PUBLISH]\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-11220\\n ________________________\\n\\n D.C. Docket No. 2:15-cv-00701-GAP-CM\\n\\nPATRICIA I. ERMINI,\\na.k.a. Patricia I. Mapes,\\n\\n Plaintiff–Appellee,\\n\\n versus\\n\\nMIKE SCOTT,\\nin his official capacity as Sheriff of Lee County, Florida,\\n\\n Defendant–Appellant.\\n\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (September 10, 2019)\\n\\nBefore WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.\\n\\nNEWSOM, Circuit Judge:\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 2 of 29\\n\\n\\n This case arises out of a routine wellness check that went badly awry. The\\n\\nunderlying episode began with three Lee County deputies stopping by to check on\\n\\n71-year-old Patricia Ermini at the request of her daughter—and ended with the\\n\\ndeputies shooting Ermini five times. Ermini—who, incredibly, survived—later\\n\\nsued, bringing a litany of state- and federal-law claims against the deputies and Lee\\n\\nCounty Sheriff Mike Scott. Only one claim made it past summary judgment—a\\n\\nstate-law cause of action against Sheriff Scott in his official capacity, seeking to\\n\\nhold him vicariously liable for the deputies’ negligence in conducting the check.\\n\\nThat claim went to trial, the jury ruled in Ermini’s favor, and the district court\\n\\nthereafter denied Scott’s motion for new trial.\\n\\n Scott now appeals the judgment against him as well as the court’s post-\\n\\njudgment order refusing his new-trial request. Scott argues (1) that the district\\n\\ncourt improperly instructed the jury that if it concluded that he proved Florida’s\\n\\n“alcohol defense,” Ermini couldn’t recover; (2) that by introducing evidence\\n\\nregarding certain aspects of the deputies’ conduct during the check, Ermini\\n\\nimpermissibly pursued a nonexistent and precluded “negligent-use-of-force” claim;\\n\\n(3) that Ermini’s lawyer made a forbidden “golden-rule” argument when she asked\\n\\nthe jurors to “imagine if someone was in [their] house”; and (4) that the trial court\\n\\nabused its discretion by admitting immaterial character evidence concerning two\\n\\ndeputies’ post-event (and unrelated) terminations from the Lee County Sheriff’s\\n\\n\\n 2\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 3 of 29\\n\\n\\nOffice. Because we find no errors that merit a new trial, we affirm the judgment in\\n\\nErmini’s favor.\\n\\n I\\n\\n A\\n\\n Following a worrisome telephone conversation, Patricia Ermini’s daughter,\\n\\nMaine resident Robin LaCasse, called the Lee County Sheriff’s Office to request a\\n\\nwellness check on her elderly mother. During the call, Ermini had seemed\\n\\ndistraught—and possibly suicidal—and LaCasse hadn’t been able to get back in\\n\\ntouch with her. LaCasse told the Sheriff’s Office that Ermini might have been\\n\\ndrinking wine and that she had a handgun in her home. Shortly after LaCasse’s\\n\\nphone call, Deputies Richard Lisenbee, Robert Hamer, and Charlene Palmese were\\n\\ndispatched to Ermini’s home; they knew that Ermini could be intoxicated and that\\n\\nshe owned a gun.\\n\\n Lisenbee arrived on the scene first, banged on the door, and yelled “Sheriff’s\\n\\nOffice,” but got no response. When he opened the unlocked door, Lisenbee found\\n\\nthe house dark, quiet, and in disarray, an empty wine bottle on the floor. He\\n\\nretreated out of the house and waited for backup. When Palmese arrived, she and\\n\\nLisenbee reentered the home and announced themselves, but again got no\\n\\nresponse. The deputies opted to wait for Hamer before continuing the wellness\\n\\ncheck. Once all three officers were on the scene, they again announced themselves\\n\\n\\n 3\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 4 of 29\\n\\n\\nand entered the dark living room with their flashlights illuminated and their\\n\\nweapons drawn. They made their way to the closed double doors leading to\\n\\nErmini’s master bedroom.\\n\\n Lisenbee opened the right door and shined his flashlight into the room,\\n\\nwhere he saw Ermini lying in bed. Ermini awoke, confused by the strangers in her\\n\\nbedroom—she testified that she remembered asking “who’s there?” and telling the\\n\\nintruders that she had a gun and to get out of her house. She also testified that she\\n\\nrecalled the deputies saying that they were with the Sheriff’s Department and her\\n\\nresponding that she hadn’t called the Sheriff and that they had better get out of her\\n\\nhouse. Lisenbee began backing out of the bedroom as Ermini, clothed only in her\\n\\nundergarments, moved toward the door.\\n\\n The deputies and Ermini recall very differently the critical moments that\\n\\nfollowed. Hamer testified that Ermini walked toward him with both hands on her\\n\\ngun, which she pointed directly at him. Ermini doesn’t remember grabbing her\\n\\ngun or pointing it at anyone. In any event, Hamer, who was outside the bedroom,\\n\\nfired seven rounds through the partially closed bedroom door, five of which hit\\n\\nErmini, who collapsed onto the floor. (Further to the parties’ dispute, Ermini’s\\n\\ngun was found on the floor to the left of where she fell after being shot, and a\\n\\nbullet from her weapon was later found lodged in the ceiling.) Hamer began\\n\\nproviding emergency medical care to a still-confused Ermini, who (according to\\n\\n\\n 4\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 5 of 29\\n\\n\\nthe officers and paramedics) repeatedly asked why the deputies were in her home\\n\\nand why they were trying to kill her. Ermini was taken to the hospital for further\\n\\ntreatment, and she survived.\\n\\n B\\n\\n Ermini sued Deputies Lisenbee, Hamer, and Palmese, as well as Sheriff\\n\\nScott and William Murphy, an additional officer who hadn’t been on the scene.\\n\\nAmong other claims, Ermini alleged excessive force and false arrest under the\\n\\nFourth Amendment, battery, negligent infliction of emotional distress, and\\n\\nnegligence in conducting the wellness check under Florida law. Only Ermini’s\\n\\nvicarious-liability claim against Scott for the allegedly negligent wellness check\\n\\nsurvived summary judgment. That claim went to trial, and the jury ultimately\\n\\nruled in Ermini’s favor, awarding her $750,000 in damages.\\n\\n Several aspects of the pre-trial and trial proceedings are relevant to this\\n\\nappeal. We’ll take them chronologically. First, before trial, Scott submitted a\\n\\nmotion in limine under Federal Rules of Evidence 403 and 404(b) to exclude\\n\\nevidence surrounding Lisenbee’s and Hamer’s post-event (and unrelated)\\n\\nterminations from the Sheriff’s Office. The district court held a telephonic hearing\\n\\nand denied the motion, stating that it would allow limited questioning about the\\n\\ntiming of and general reasons for the officers’ terminations but that it would\\n\\nexclude additional details and written reports. Second, during closing arguments,\\n\\n\\n 5\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 6 of 29\\n\\n\\nErmini’s lawyer asked the jury, “Can you imagine if someone was in your house\\n\\nthat you wouldn’t try to figure out who is that[?]” Scott’s lawyer objected, stating\\n\\n“That’s not right, golden rule.” The district court overruled the objection without\\n\\nfurther elaboration.\\n\\n The third item pertains to Scott’s “alcohol defense,” which, under Florida\\n\\nlaw, prevents a plaintiff from recovering damages if either her “normal faculties\\n\\nwere impaired” or she had a blood-alcohol level of 0.08% or higher, and as a result\\n\\nshe was more than 50% responsible for her own harm. Fla. Stat. § 768.36(2)(a)–\\n\\n(b) (2019). The district court instructed the jury that if it found that Scott had\\n\\nproved the alcohol defense by a preponderance of the evidence, Ermini couldn’t\\n\\nrecover. A similar statement was included on the special verdict form given to the\\n\\njury, which informed jurors that if they found in Scott’s favor on the defense, they\\n\\ndidn’t need to fill out the remainder of the form. Scott objected to the court’s\\n\\nalcohol-defense instruction at trial.\\n\\n Following the jury’s verdict, Scott moved for a new trial and renewed his\\n\\nmotion for judgment as a matter of law. As relevant here, he argued that the\\n\\nevidence about Lisenbee’s and Hamer’s terminations should have been excluded\\n\\nand that Ermini had improperly introduced evidence about the deputies’ use of\\n\\nforce, which Scott said had no place in a negligent-wellness-check case. The\\n\\n\\n\\n\\n 6\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 7 of 29\\n\\n\\ndistrict court denied both motions. Scott appeals the district court’s judgment and\\n\\nits order denying his motion for new trial. 1\\n\\n II\\n\\n Scott’s first argument challenges the district court’s jury instructions and\\n\\nverdict-form entry pertaining to Florida’s alcohol defense, which is codified at Fla.\\n\\nStat. § 768.36. The district court instructed the jury as follows:\\n\\n On the first defense, the issue for you to decide is whether Patricia\\n Ermini was under the influence of any alcoholic beverage to the\\n extent that her normal faculties were impaired, or the plaintiff had a\\n blood alcohol level of .08 or higher; and whether as a result of the\\n influence of such alcoholic beverage, Patricia Ermini was more than\\n 50 percent at fault for her own harm.\\n\\n If you find that the sheriff has proven this defense by a\\n preponderance of the evidence, then plaintiff’s claim is barred and\\n your verdict is for the sheriff.\\n\\n(emphasis added). Scott objected to the italicized portion of the charge,\\n\\nwhich wasn’t included in the parties’ proposed instructions. The verdict form\\n\\nsimilarly informed the jury that if it found that Scott had proved the alcohol\\n\\ndefense, it didn’t need to complete the remainder of the form.\\n\\n Scott contends that he is entitled to a new trial because the district court\\n\\nimproperly told the jury about the legal effect of any finding under the alcohol\\n\\ndefense—namely, that if proved the defense would bar Ermini from recovering.\\n\\n\\n1\\n Although Scott’s notice of appeal also referenced his renewed motion for judgment as a matter\\nof law, he didn’t address that motion in his briefing, so we won’t consider it here.\\n\\n 7\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 8 of 29\\n\\n\\nThat information, he says, was unnecessary and was likely to evoke sympathy for\\n\\nErmini. In particular, Scott asserts that just as evidence of a party’s liability\\n\\ninsurance is inadmissible at trial, see Fed. R. Evid. 411, information about the legal\\n\\neffect of an alcohol-impairment finding should be verboten since it too has the\\n\\npotential to improperly influence the jurors’ emotions. We disagree.2\\n\\n A\\n\\n Before jumping into the merits, we must determine at the outset whether\\n\\nstate or federal law governs Scott’s argument. We know, as a general matter, that\\n\\nin a diversity case in federal court, “[t]he substance of jury instructions . . . is\\n\\ngoverned by the applicable state law, but questions regarding procedural aspects of\\n\\njury charges are controlled by federal law and federal rules.” Pate v. Seaboard\\n\\nR.R., Inc., 819 F.2d 1074, 1081–82 (11th Cir. 1987) (citations omitted). This case,\\n\\nthough, poses a more specific issue, which turns out to be a question of first\\n\\nimpression for this Court: What law applies—state or federal—when deciding\\n\\nwhether a district court judge properly informed the jury about the legal effect of\\n\\nits finding under state law? More particularly, is informing the jury about the legal\\n\\neffect of a factual finding bound up in the “substance of [the] jury instructions”\\n\\n\\n2\\n “We review jury instructions de novo to determine whether they misstate the law or mislead the\\njury to the prejudice of the objecting party.” Palmer v. Bd. of Regents of the Univ. Sys. of Ga.,\\n208 F.3d 969, 973 (11th Cir. 2000) (citations omitted). So long as the jury “instructions\\naccurately reflect the law,” however, a district court has “wide discretion as to the style and\\nwording employed.” McCormick v. Aderholt, 293 F.3d 1254, 1260 (11th Cir. 2002).\\n\\n 8\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 9 of 29\\n\\n\\nwithin the meaning of Pate, and thus governed by the underlying state law, or is it\\n\\ninstead a “procedural aspect[]” of the charge governed by federal law?\\n\\n We join the Seventh Circuit in holding that this issue is controlled by federal\\n\\nlaw, as it pertains to procedure, not substance. In Beul v. ASSE International, Inc.,\\n\\n233 F.3d 441 (7th Cir. 2000), the Seventh Circuit faced the question whether state\\n\\nor federal law governed a district court’s handling of a question posed to it by a\\n\\njury during its deliberations. The question pertained to the special verdict form,\\n\\nwhich required the jury “to enter separately . . . the amount of damages and the\\n\\npercentage of the plaintiff’s comparative fault and not make the ‘bottom line’\\n\\ncomputation, which involve[d] deducting from the amount of damages that amount\\n\\ntimes the plaintiff’s percentage of comparative fault.” Id. at 449. In particular, the\\n\\njury asked, “What bearing do the negligence factors”—i.e., the fault percentages\\n\\nassigned to the parties—“have on the amounts we may or may not choose to\\n\\naward?” Id. The judge answered, correctly, that they would indeed have an effect:\\n\\n“[T]he comparison factor, if you find both parties negligent, has a significant\\n\\nimpact upon the award that the Court enters.” Id.\\n\\n In concluding that federal law governed the question whether the judge had\\n\\nacted properly, the Seventh Circuit began with the proposition that “[r]ules of\\n\\ngeneral applicability and purely managerial character governing the jury, such as\\n\\nthe form in which a civil jury is instructed, are quintessentially procedural.” Id.\\n\\n\\n 9\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 10 of 29\\n\\n\\nFrom that premise, the court concluded that a district judge’s decision to inform\\n\\nthe jury about the legal effect of its findings is an issue of procedure: “We think it\\n\\nfollows that whether the federal court should try to keep the jury in the dark about\\n\\nthe legal effect of the jury’s answers to the questions posed to it by the special\\n\\nverdict is also a question of federal law.” Id. The court wrote that its classification\\n\\nof the issue as procedural could result either from “an interpretation of [Federal]\\n\\nRule [of Civil Procedure] 49(a),” which governs special verdicts, or from the\\n\\napplication of “a federal common law of special verdicts to supplement the rule.”\\n\\nId. (The same, we think, could be said with respect to Rule 51, which governs jury\\n\\ninstructions. See Fed. R. Civ. P. 51.)\\n\\n We agree with the Seventh Circuit’s conclusion that federal law controls.\\n\\nThe decision whether to inform the jury about the legal effect of its findings—or,\\n\\nwhether instead, in the Seventh Circuit’s words, to “keep the jury in the dark”—\\n\\nhas nothing to do with the substance of the applicable legal rule or the merits of the\\n\\nissues before the court. Instead, it has everything to do with the fair and efficient\\n\\nmanagement of the trial. To be sure, a party may take issue with the fairness or\\n\\nefficiency of the district court’s decision; but it must do so by reference to federal\\n\\nlaw, not state.\\n\\n\\n\\n\\n 10\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 11 of 29\\n\\n\\n B\\n\\n So then, does federal law preclude a district court judge from informing\\n\\njurors about the legal effects of their factual findings? We hold that it doesn’t.\\n\\n It’s true, of course, that “[a] judge has no general duty to inform the jury of\\n\\nthe legal consequences of its verdict.” Beul, 233 F.3d at 450 (citations omitted).\\n\\nAnd it may even be the case that “in some circumstances the giving of such\\n\\ninformation might interfere with the jury’s appraisal of the facts.” Id. But there is\\n\\nmost assuredly “no rule against giving the information.” Id. And indeed, we agree\\n\\nwith the Seventh Circuit that it is “difficult to conceive” of a scenario in which\\n\\nmerely informing jurors of the legal consequences of their findings—i.e., telling\\n\\nthem the whole truth—would constitute reversible error. Id. Rule 49 expressly\\n\\nallows judges to use general verdict forms with special interrogatories, which\\n\\n“reveal to the jury the legal consequences of its specific findings,” and “there is no\\n\\npurpose in forbidding [judges] to do the same thing with a special verdict.” Id.\\n\\nAnd we can think of no reason why a different rule should apply to jury\\n\\ninstructions. We hold, therefore, that a district court may inform the jury about the\\n\\nlegal effect of its finding so long as it does so accurately. And here no one\\n\\ncontends—nor could they—that the court’s instructions were inaccurate.\\n\\n Scott leans heavily on Harrison v. Gregory, and understandably so, as the\\n\\ncourt there granted a new trial, in part because the jury was told that if it concluded\\n\\n\\n 11\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 12 of 29\\n\\n\\nthe defendant had proved Florida’s alcohol defense, the plaintiff couldn’t recover.\\n\\n221 So. 3d 1273, 1277–78 (Fla. Dist. Ct. App. 2017). Harrison, though, is doubly\\n\\ndistinguishable. First, it arose under state law, and as we’ve just explained, federal\\n\\nlaw governs whether and under what circumstances a federal district court judge\\n\\nmay inform the jury about the legal effect of its findings. Second, Harrison is\\n\\ndifferent in an important respect. The problem there wasn’t so much that the jury\\n\\nfound out about the legal effect of its finding regarding Florida’s alcohol defense,\\n\\nbut rather that the plaintiff’s lawyer had, in closing, attempted to “inflame the\\n\\nminds and passions of the jurors” by harping on the unfairness of the statutory\\n\\ndefense: “By the way,” he said, “50 percent or more at fault, there’s no recovery.”\\n\\nId. at 1277. 3 The situation here, where the district court impassively—and\\n\\naccurately—instructed the jury concerning the legal effect of its alcohol-defense\\n\\nfinding, strikes us as entirely different. Walther v. Omaha Public Power District,\\n\\n412 F.2d 1164 (8th Cir. 1969), on which Scott also relies, is also off-point. There,\\n\\nthe Eighth Circuit merely concluded that the legal effect of a jury’s finding needn’t\\n\\nnecessarily be included in a jury instruction, not that it can’t be included. See id. at\\n\\n1169–70.\\n\\n\\n3\\n In this connection, it is worth noting that Scott’s own lawyer made a similar comment during\\nhis closing argument here: “[B]y the way, if [Ermini’s] own intoxication impairment factored\\ninto this incident, precipitated the incident, caused the incident, then this claim is barred.” He\\nwent on to tell the jurors that if they found in Scott’s favor with regard to the alcohol defense,\\n“that ends this case.”\\n\\n 12\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 13 of 29\\n\\n\\n To summarize: Federal law controls this issue, and federal law doesn’t\\n\\npreclude district court judges from accurately informing jurors of the effects of\\n\\ntheir findings—in either their instructions or their verdict forms. Accordingly, it\\n\\nwasn’t improper for the judge here to provide an accurate statement of law\\n\\nexplaining the legal effect of the jury’s finding under Florida’s alcohol defense.\\n\\n III\\n\\n Scott next asserts that he is entitled to a new trial on the ground that Ermini\\n\\neffectively used her negligent-wellness-check claim as a Trojan Horse to reassert\\n\\nher claims about the deputies’ use of force, which the district court had dismissed\\n\\npretrial. Although his position is difficult to discern, Scott seems to be making\\n\\neither (or both) of two different arguments. First, he contends that Ermini’s\\n\\nintroduction of evidence about the deputies’ use of force converted her otherwise\\n\\ncognizable (even if he would say losing) negligent-wellness-check claim into an\\n\\ninvalid “negligent-use-of-force” claim that Florida law doesn’t recognize. Second,\\n\\nand separately, because the district court rejected Ermini’s claims surrounding the\\n\\nofficers’ use of force at summary judgment, Scott asserts that her claim is\\n\\nprecluded. We disagree on both counts.4\\n\\n\\n\\n4\\n Our “review of a district court’s denial of a motion for new trial is very limited.” Blu-J, Inc. v.\\nKemper C.P.A. Grp., 916 F.2d 637, 643 (11th Cir. 1990). “Absent an abuse of discretion, the\\ndistrict court’s disposition of a motion for a new trial will not be disturbed on appeal, especially\\nwhen that disposition was to deny the motion.” Id.\\n\\n 13\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 14 of 29\\n\\n\\n A\\n\\n We’ll start with Scott’s contention that Ermini used the guise of a negligent-\\n\\nwellness-check claim to try a non-cognizable negligent-use-of-force claim. And\\n\\nwe’ll begin at the beginning, with Ermini’s complaint. Ermini’s complaint\\n\\nexpressly alleged that Scott’s deputies negligently performed a wellness check—\\n\\nnot that they engaged in a negligent use of force. (To be sure, Ermini asserted that\\n\\nthe deputies used force excessively, in violation of federal constitutional standards,\\n\\nbut not that they used force negligently, in violation of state law.) In particular,\\n\\nErmini alleged that “S[cott], acting through his deputies, owed a special duty of\\n\\ncare to [her] because of the manner in which his deputies responded to a 911 call\\n\\nfor a wellness check,” and that the deputies later “fail[ed] to exercise reasonable\\n\\ncare in conducting the wellness check.” And the district court certainly seemed to\\n\\nappreciate the distinction: While the court granted summary judgment in the\\n\\ndeputies’ favor on Ermini’s excessive-force claims, it denied them summary\\n\\njudgment on the negligent-wellness-check claim, finding that “triable issues of fact\\n\\nexist[ed] as to whether the deputies exercised reasonable care in carrying out the\\n\\nwelfare check, which increased the risk of harm to [Ermini], and whether\\n\\n[Ermini’s] actions were a reasonably foreseeable consequence of the negligent acts\\n\\nor omissions of the deputies.”\\n\\n\\n\\n\\n 14\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 15 of 29\\n\\n\\n Even so, Scott insists that as matters unfolded at trial, Ermini’s negligent-\\n\\nwellness-check claim devolved into a non-cognizable—and thus forbidden—\\n\\nnegligent-use-of-force claim. We don’t think so. Ermini didn’t invent and litigate\\n\\na new cause of action; rather, there is simply an inevitable overlap between the\\n\\nfacts underlying her negligent-wellness-check claim and those surrounding the\\n\\ndeputies’ use of force. And although Florida doesn’t recognize claims for\\n\\nnegligent use of force, it does recognize the commonsense proposition that\\n\\n“distinct act[s] of negligence” can occur in conjunction with alleged excessive-\\n\\nforce incidents. City of Miami v. Sanders, 672 So. 2d 46, 48 (Fla. Dist. Ct. App.\\n\\n1996). Just so here—the wellness check involved distinct acts of alleged\\n\\nnegligence during which an allegedly excessive use of force occurred.\\n\\n To bolster his claim, Scott asserts that “[m]uch of [Ermini’s] counsel’s\\n\\nquestions and argument” focused on the officers’ use of force, but he musters only\\n\\ntwo examples from the trial record: (1) Ermini’s lawyer suggesting that she never\\n\\npointed her gun at the deputies; and (2) her lawyer referencing the deputies’ failure\\n\\nto issue a warning prior to opening fire. Two instances do not “much” of Ermini’s\\n\\nargument make. Moreover, the facts surrounding the use of force are inextricably\\n\\nintertwined with those surrounding the wellness check—it’s all one seamless story.\\n\\nAccordingly, it seems to us essentially inevitable that Ermini’s lawyer properly\\n\\nwould elicit testimony pertaining to the use of force in the course of trying the\\n\\n\\n 15\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 16 of 29\\n\\n\\nnegligent-wellness-check claim. Indeed, excluding all information about the\\n\\nofficers’ force would have made it nearly impossible for the jury to do its job.\\n\\nCould jurors have even possibly determined Ermini’s damages, for instance, if they\\n\\nhad been precluded from hearing any information about the specific conduct that\\n\\ncaused her injury?\\n\\n In any event, the fact that Ermini’s lawyer mentioned a few details about the\\n\\nforce used by the deputies doesn’t negate or invalidate the trial’s overarching focus\\n\\non their negligence in performing the wellness check, nor does it convert Ermini’s\\n\\nnegligent-wellness-check claim into a nonexistent negligent-use-of-force claim.\\n\\nThe complaint, the jury instructions, and the verdict form all properly focused on\\n\\nthe vicarious-liability claim against Scott and his statutory defenses. And when\\n\\nErmini’s lawyer examined her witnesses—particularly the officers—she\\n\\nquestioned them extensively about their conduct in connection with the wellness\\n\\ncheck even before any shots were fired. She asked the deputies, for instance, about\\n\\ntheir dark uniforms, whether the lights outside Ermini’s home were on, whether the\\n\\nhouse’s interior was dark and if (and how) they used their flashlights, whether their\\n\\npatrol cars were visible from the road, whether they checked the perimeter of the\\n\\nhome before entering, whether they used Ermini’s name when speaking to her, and\\n\\nwhat, if any, wellness-check-related training or experience they had received prior\\n\\nto the incident. None of those questions had anything to do with the officers’ use\\n\\n\\n 16\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 17 of 29\\n\\n\\nof force. The fact that Ermini’s lawyer also occasionally touched on force-related\\n\\ntopics doesn’t convert the cause of action. The circumstances surrounding the\\n\\nwellness check and the use of force are bound up in the same unfortunate\\n\\nincident—it’s difficult, if not impossible, to tell the former story without\\n\\noccasionally verging into the latter.\\n\\n B\\n\\n Scott separately contends—albeit obliquely—that Ermini’s introduction of\\n\\nevidence pertaining to the deputies’ use of force should have been barred by some\\n\\nform of preclusion doctrine. Again, we disagree.\\n\\n To the extent that any such doctrine is in play here, we think it is “direct\\n\\nestoppel,” which is a variety of issue preclusion. DuChateau v. Camp, Dresser &\\n\\nMcKee, Inc., 713 F.3d 1298, 1301 (11th Cir. 2013). “Direct estoppel, as opposed\\n\\nto collateral estoppel, governs the preclusive effect of a litigated issue in a separate\\n\\nproceeding within a single suit.” Cotton v. Heyman, 63 F.3d 1115, 1118 n.1 (D.C.\\n\\nCir. 1995); see also DuChateau, 713 F.3d at 1301–03. To the extent Scott means\\n\\nto argue that Ermini was barred from “relitigating” at trial force-related facts that\\n\\nhad already been adjudicated against her at summary judgment—in particular,\\n\\nwhether Ermini pointed her gun at the deputies and whether they warned her\\n\\nbefore shooting—his argument fails. A partial summary judgment on some of a\\n\\nplaintiff’s claims cannot directly estop other claims that proceed to trial.\\n\\n\\n 17\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 18 of 29\\n\\n\\n We have held that a jury verdict on one claim can directly estop another\\n\\nclaim in the same suit. DuChateau, 713 F.3d at 1301–02 (holding that a jury\\n\\nverdict on a claim of employment retaliation directly estopped the plaintiff’s\\n\\nappeal of the district court’s rejection of her claim of pregnancy discrimination\\n\\nbecause both claims required proof of adverse employment action). But partial\\n\\nsummary judgment is materially different from a jury verdict. Unlike a jury\\n\\nverdict, a partial summary judgment is not a “final decision” under 28 U.S.C.\\n\\n§ 1291. State Treasurer of Michigan v. Barry, 168 F.3d 8, 11 (11th Cir. 1999).5\\n\\nAccordingly, the district court’s interlocutory order rejecting some of Ermini’s\\n\\nclaims at summary judgment does not preclude her negligent-wellness-check\\n\\nclaim. 6\\n\\n\\n\\n\\n5\\n The only way for Ermini to obtain appellate review of the district court’s partial summary\\njudgment against her would have been to seek discretionary interlocutory review, 28 U.S.C.\\n§ 1292(b), or extraordinary relief such as a writ of mandamus. And a failure to seek permissive\\ninterlocutory review does not transform an otherwise nonfinal order into a final decision entitled\\nto preclusive effect. 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal\\nPractice and Procedure § 4418, at 524 (3d ed. 2016) (“[F]ailure to seize opportunities for\\navowedly interlocutory review should not transform a potentially reviewable order into issue\\npreclusion.”).\\n6\\n Moreover, and in any event, both of the issues on which Scott seems to predicate his estoppel-\\nbased argument—whether Ermini pointed her gun at the deputies and whether they warned her\\nbefore shooting—were assumed in Ermini’s favor at summary judgment, not against her; the\\ndistrict court accepted for the sake of argument that Ermini didn’t point her gun at the deputies\\nand that they didn’t warn her before opening fire, but granted summary judgment on her\\nexcessive-force claim anyway.\\n\\n 18\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 19 of 29\\n\\n\\n IV\\n\\n Next, the “golden-rule.” Scott objects to the following statement that\\n\\nErmini’s lawyer made at closing: “The fact of the matter is that . . . actually, the\\n\\nevidence supports Ms. Ermini’s version, which is a logical thing. Can you imagine\\n\\nif someone was in your house that you wouldn’t try to figure out who is that[?]”\\n\\n(emphasis added). Scott asserts that this statement violates the prohibition on\\n\\n“golden-rule” arguments. We disagree. 7\\n\\n A\\n\\n A “golden-rule” argument invites jurors to “put themselves in the shoes of\\n\\nthe plaintiff and do unto him as they would have him do unto them under similar\\n\\ncircumstances.” Ivy v. Sec. Barge Lines, Inc., 585 F.2d 732, 741 (5th Cir. 1978).\\n\\nThe risk is that such a statement asks jurors to “decide the case on the basis of\\n\\nsympathy rather than from an objective review of the evidence.” Dempsey v. Mac\\n\\nTowing, Inc., 876 F.2d 1538, 1540 n.1 (11th Cir. 1989). An unremedied golden-\\n\\nrule argument will ordinarily result in reversal. Id.\\n\\n A golden-rule objection typically arises when a lawyer asks jurors to place\\n\\nthemselves in the plaintiff’s position with respect to the calculation of damages.\\n\\nSee, e.g., Ivy, 585 F.2d at 741 & n.10. For example, asking the jury, “If you were\\n\\n\\n7\\n We review a district court’s ruling regarding allegedly improper statements by counsel for an\\nabuse of discretion. Allstate Ins. Co. v. James, 845 F.2d 315, 318 (11th Cir. 1988) (citation\\nomitted).\\n\\n 19\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 20 of 29\\n\\n\\nin the plaintiff’s shoes, how much do you think you would deserve?” would be a\\n\\nclear-cut violation. “The rationale for prohibiting such an argument is that the\\n\\njury’s sympathy will be unfairly aroused, resulting in a disproportionate award of\\n\\ndamages.” Burrage v. Harrell, 537 F.2d 837, 839 (5th Cir. 1976); see also Har-\\n\\nPen Truck Lines, Inc. v. Mills, 378 F.2d 705, 714–15 (5th Cir. 1967). The question\\n\\nhere is whether Ermini’s lawyer’s statement—which pertained not to the\\n\\nappropriate measure of damages but rather to Scott’s liability for the deputies’\\n\\nactions—violated the prohibition on golden-rule arguments as explicated in our\\n\\ncase law. We conclude that it didn’t.\\n\\n B\\n\\n Although many courts treat golden-rule arguments as universally improper, 8\\n\\nwe have historically permitted certain golden-rule-ish statements in the liability\\n\\ncontext. Most notably for present purposes, in McNely v. Ocala Star-Banner\\n\\nCorp., we held that defense counsel didn’t violate the prohibition on golden-rule\\n\\narguments when he “invit[ed] the jury to put itself in the defendants’ position when\\n\\n\\n\\n8\\n See, e.g., Caudle v. District of Columbia, 707 F.3d 354, 360 (D.C. Cir. 2013) (holding that “[i]t\\nis no more appropriate for a jury to decide a defendant’s liability . . . based on an improper\\nconsideration than to use the same consideration to determine damages”); Mich. First Credit\\nUnion v. Cumis Ins Soc’y, Inc., 641 F.3d 240, 249 (6th Cir. 2011); Ins. Co. of N. Am., Inc. v. U.S.\\nGypsum Co., 870 F.2d 148, 154 (4th Cir. 1989); Edwards v. City of Philadelphia, 860 F.2d 568,\\n574–75 (3d Cir. 1988); Joan W. v. City of Chicago, 771 F.2d 1020, 1022 (7th Cir. 1985) (stating\\nthat “[t]here is no reason for . . . a distinction [between different types of golden rule statements]\\nbecause the jury’s departure from its neutral role is equally inappropriate regardless of the issue\\nat stake”).\\n\\n 20\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 21 of 29\\n\\n\\nconsidering [plaintiff’s] alleged work place misconduct and evaluating whether he\\n\\nwas terminated because of his disability.” 99 F.3d 1068, 1071 n.3 (11th Cir.\\n\\n1996). That statement, we held, “was not in any way directed to the question of\\n\\ndamages; rather it related only to the reasonableness of appellee’s actions”—an\\n\\nissue that was squarely, and properly, before the jury. Id. (emphasis added) (citing\\n\\nBurrage, 537 F.2d at 839).\\n\\n Somewhat farther afield—but in the same vein—we have permitted liability-\\n\\nrelated golden-rule statements in criminal cases. In Reese v. Secretary, Florida\\n\\nDepartment of Corrections, for instance, we held that a prosecutor’s comment that\\n\\na victim experienced “every woman’s wors[t] nightmare,” as well as statements\\n\\nurging the jury to think about “what was going on in [the victim’s] mind,” weren’t\\n\\nimproper golden-rule arguments because the government had to show that the\\n\\ncrime was “designed to inflict a high degree of pain with utter indifference to . . .\\n\\nthe suffering of others” in order to prove an aggravating factor. 675 F.3d 1277,\\n\\n1292 (11th Cir. 2012) (first alteration in original) (quoting citation omitted). So\\n\\ntoo, in Davis v. Kemp, we deemed the following statement permissible in a death-\\n\\npenalty case, because the jury could properly consider the defendant’s “future\\n\\ndangerousness”: “Ask yourselves this question, how would you feel living in this\\n\\ncommunity if you looked out of your window one night and saw [the defendant]\\n\\nwalking down the street coming up toward your house. If that wouldn’t put a\\n\\n\\n 21\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 22 of 29\\n\\n\\nfeeling of cold terror in your heart, what would?” 829 F.2d 1522, 1528–29 (11th\\n\\nCir. 1987).9\\n\\n The common tie that binds the liability-related golden-rule-ish statements\\n\\nthat we have deemed permissible? Their connection to an element or factor\\n\\ngenuinely at issue in the case, or their focus on either a party’s behavior or\\n\\nperception of an incident. Here, Ermini’s lawyer’s argument went directly to the\\n\\nreasonableness of Ermini’s response to the deputies’ actions during the wellness\\n\\ncheck, which bears directly on the foreseeability of her actions—both issues that\\n\\njurors would necessarily have had to grapple with in deciding Ermini’s negligent-\\n\\nwellness-check claim. The statement seems to us essentially indistinguishable\\n\\nfrom the reasonableness-related statement that we allowed in McNely.\\n\\n Admittedly, Ermini’s lawyer could have chosen her words more carefully—\\n\\nthere’s plenty of case law warning attorneys to steer clear of potentially\\n\\ninflammatory closing arguments, see, e.g., United States v. Kopituk, 690 F.2d\\n\\n1289, 1342–43 (11th Cir. 1982)—but, her lone statement in closing didn’t run\\n\\nafoul of the prohibition on golden-rule statements as we have understood and\\n\\napplied it.\\n\\n\\n\\n9\\n See also, e.g., Kennedy v. Dugger, 933 F.2d 905, 913 (11th Cir. 1991) (permitting the following\\ncomment about a first-degree-murder victim’s experience: “Can you imagine, in your own\\nliving room not bothering a soul on a Saturday afternoon? . . . [The defendant] walked . . . down\\nto your own house, and, a total stranger, because you got in his way, destroys you[?]”).\\n\\n 22\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 23 of 29\\n\\n\\n What’s more, even if the statement had crossed the line, “[f]or reversible\\n\\nerror to be found in a closing argument, the challenged argument must be ‘plainly\\n\\nunwarranted and clearly injurious.’” Goldsmith v. Bagby Elevator Co., 513 F.3d\\n\\n1261, 1282 (11th Cir. 2008) (quoting Peterson v. Willie, 81 F.3d 1033, 1036 (11th\\n\\nCir. 1996)). There is no evidence to suggest that Ermini’s lawyer’s statement was\\n\\n“plainly unwarranted”—again, it seems at the very least to fall within the zone of\\n\\nstatements that we have allowed—let alone “clearly injurious” to Scott’s case. Id.\\n\\nMoreover, when evaluating the prejudice resulting from an attorney’s comments,\\n\\nwe examine comments in the context of the entire trial and any curative\\n\\ninstruction, United States v. Hernandez, 145 F.3d 1433, 1438–39 (11th Cir. 1998),\\n\\nand here the district court judge explicitly instructed the jurors that they “must not\\n\\nbe influenced in any way by either sympathy or prejudice for or against either\\n\\nparty,” and that they “must follow the law . . . even if [they] do not agree with it.”\\n\\n V\\n\\n Finally, Scott challenges the admission of Lisenbee’s and Hamer’s\\n\\ntestimony about their post-event terminations from the Sheriff’s Office—which all\\n\\nagree had nothing to do with the incident involving Ermini but which, Scott says,\\n\\ntended to paint the deputies in a bad light. The district court allowed limited\\n\\nquestioning about the timing of and general reasons for Lisenbee’s and Hamer’s\\n\\nfirings, but it excluded any related documents containing further details. In\\n\\n\\n 23\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 24 of 29\\n\\n\\nparticular, when examining Lisenbee, Ermini’s lawyer briefly asked whether he\\n\\nhad been dismissed from the Sheriff’s Office; questioning revealed only that\\n\\nLisenbee had been a probationary officer at the time of the Ermini incident and that\\n\\nhe hadn’t “me[t his] probationary requirements.” Ermini’s lawyer also confirmed\\n\\nthat Hamer had been fired for “[c]onduct unbecoming” after he “violate[d] a policy\\n\\nand fail[ed] to disclose it.” That was the extent of the evidence—no additional\\n\\ndetails were elicited, no explanatory records or documentation were introduced,\\n\\nand the remainder of the deputies’ examinations focused on the incident at issue.10\\n\\n Because the issue at trial was whether Scott was vicariously liable for the\\n\\ndeputies’ own failure to use reasonable care in conducting the wellness check,\\n\\nScott contends that allowing Ermini’s lawyer to question Lisenbee and Hamer\\n\\nabout their terminations—even to a limited extent—violated Federal Rules of\\n\\nEvidence 404(b) and 403. We discuss the application of those rules in turn.11\\n\\n\\n\\n\\n10\\n As a result of the judge’s exclusion of any additional evidence surrounding the deputies’\\nterminations, jurors didn’t learn (1) that Lisenbee’s failure to meet probationary requirements\\nwas partially related to his “inability to control scenes or suspects through verbal commands”\\nand that he “had started remedial training two weeks before this incident”; or (2) that Hamer was\\ndismissed after “an unrelated incident where inappropriate materials were found on his work\\ncomputer.”\\n11\\n We review a district court’s evidentiary rulings for abuse of discretion. United States v.\\nBrown, 665 F.3d 1239, 1247 (11th Cir. 2011).\\n\\n 24\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 25 of 29\\n\\n\\n A\\n\\n In relevant part, Federal Rule of Evidence 404(b) states that “[e]vidence of a\\n\\ncrime, wrong, or other act is not admissible to prove a person’s character in order\\n\\nto show that on a particular occasion the person acted in accordance with the\\n\\ncharacter.” Fed. R. Evid. 404(b)(1). The rule’s language is broad—it applies to\\n\\nany “person[,]” not just to plaintiffs, defendants, or parties. Even so, we have held\\n\\nin both the civil and criminal contexts that Rule 404(b) does not—at least of its\\n\\nown force—apply when, as here, the challenged other-bad-acts evidence implicates\\n\\na witness or another non-party to the litigation. See United States v. Morano, 697\\n\\nF.2d 923, 926 (11th Cir. 1983) (concluding, in a criminal case, that “Rule 404(b)\\n\\ndoes not control” in instances where the evidence in question does not relate to acts\\n\\nof the defendant, but rather to “an extraneous offense committed by someone other\\n\\nthan the defendant”); Glados, Inc. v. Reliance Ins. Co., 888 F.2d 1309, 1311–12\\n\\n(11th Cir. 1987) (citing and applying Morano in the context of a civil case).\\n\\n As we did in United States v. Sellers, we once again “question Morano’s\\n\\nreasoning,” which seems to us to flatly contradict Rule 404(b)’s clear text:\\n\\n The plain language of Rule 404(b) refers to “persons,” not\\n “defendants,” and Rule 404(a) carves out specific exceptions relating\\n to the “accused,” “victim[s],” and “witness[es].” Where, as\\n in Morano and this case, the non-defendant’s “extraneous” act, if\\n proved, directly supports the guilt of the defendant as to the crime\\n charged, that “extraneous” act should not, it seems, be subject to proof\\n through the improper character-evidence route condemned by Rule\\n\\n\\n 25\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 26 of 29\\n\\n\\n 404. Indeed, it is difficult to see how the non-defendant’s act could be\\n described as “extraneous” in such circumstances.\\n\\n906 F.2d 597, 604 n.11 (1990). We recognize, though, as we did in Sellers, that\\n\\nwe are “bound by [Morano] as precedent”—especially as extended to the civil-\\n\\nlitigation context in Glados. Id. And finally we note—more happily, and again as\\n\\nwe did in Sellers—that Rule 404(b)’s non-applicability probably doesn’t make\\n\\nmuch of a difference, because “Morano held that the factors articulated in Rule\\n\\n404 ‘should be considered in weighing the balance between the relevancy of this\\n\\nevidence and its prejudice under Rule 403.’” Sellers, 906 F.2d at 604 n.11\\n\\n(quoting Morano, 697 F.2d at 926). “The functional analysis is thus largely the\\n\\nsame”—it just takes place under the auspices of Rule 403 rather than Rule 404(b).\\n\\nId.\\n\\n So we conclude—in accord with existing precedent, but dubitante—that\\n\\nRule 404(b) doesn’t apply here, and we turn to consider whether the admission of\\n\\nevidence pertaining to Lisenbee’s and Hamer’s terminations violated Rule 403 and,\\n\\nif so, whether the error in admitting it was harmless.\\n\\n B\\n\\n Rule 403 states that a court “may exclude relevant evidence if its probative\\n\\nvalue is substantially outweighed by a danger of . . . unfair prejudice, confusing the\\n\\nissues, misleading the jury, undue delay, wasting time, or needlessly presenting\\n\\ncumulative evidence.” Fed. R. Evid. 403. This Court affords district court judges\\n 26\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 27 of 29\\n\\n\\n“the broadest discretion in determining whether evidence should be excluded under\\n\\nRule 403.” United States v. Costa, 947 F.2d 919, 924 (11th Cir. 1991) (quoting\\n\\ncitation omitted).\\n\\n Taking Rule 404(b) considerations into account—as Morano and Sellers\\n\\nrequire—we think the challenged testimony here could easily be understood to\\n\\nconvey precisely the kind of propensity-based inference that the Rules of Evidence\\n\\naim to prevent—namely, that Lisenbee and Hamer were bad cops (why else the\\n\\nfirings?) with a penchant to act badly, just as Ermini alleges they did the night of\\n\\nthe wellness check. Moreover, the circumstances in this case are unique in that\\n\\nwhile Scott is the defendant, he is only vicariously so—practically speaking, the\\n\\ndeputies’ actions are on trial. Accordingly, it seems to us that “the policies\\n\\nunderlying Rule 404(b)”—which again, we are instructed to fold into our Rule 403\\n\\nanalysis— are squarely applicable. Morano, 697 F.2d at 926. All things\\n\\nconsidered, we think it clear that the prejudicial value of this evidence could be\\n\\nthought to substantially outweigh its probative value.\\n\\n That, though, isn’t the end of the inquiry. Even if a district court abuses its\\n\\ndiscretion by admitting prejudicial character evidence, evidentiary error “must\\n\\n[still] rise above the threshold of harmless error” to warrant reversal. Perry v.\\n\\nState Farm Fire & Cas. Co., 734 F.2d 1441, 1446 (11th Cir. 1984) (quoting\\n\\nWallace v. Ener, 521 F.2d 215, 222 (5th Cir. 1975)). The burden of proving that\\n\\n\\n 27\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 28 of 29\\n\\n\\nan error was not harmless rests with the party asserting it, who must establish that\\n\\nthe error “affect[ed his] . . . substantial rights.” Id. “If . . . the error did not\\n\\ninfluence the jury, or had but very slight effect, the verdict and the judgment\\n\\nshould stand . . . .” Kotteakos v. United States, 328 U.S. 750, 764 (1946).\\n\\n Although we think the district court may well have abused its discretion in\\n\\nadmitting Lisenbee’s and Hamer’s testimony, we conclude that any error was\\n\\nharmless, for several reasons. First, Ermini’s lawyer’s questioning of the witnesses\\n\\nwas brief and was largely limited to generalities about their dismissals; the district\\n\\ncourt properly excluded explanatory records and documents, which would have\\n\\nintroduced additional details. Second, Ermini’s lawyer asked all of her witnesses\\n\\nabout their employment history and current job status, save for those who appeared\\n\\nin uniform and whose status was therefore obvious—so there wasn’t any undue\\n\\nfocus on Lisenbee and Hamer. Third, Lisenbee and Hamer clarified on cross-\\n\\nexamination that they were not terminated—or even disciplined or criticized—as a\\n\\nresult of anything they did (or didn’t do) in connection with the Ermini incident,\\n\\nand, further, that the Sheriff’s Office never even concluded that they “violated\\n\\npolicy” during the wellness check.\\n\\n Because we conclude that Scott hasn’t shown that the deputies’ testimony\\n\\nabout their terminations affected his substantial rights, we find no reversible error.\\n\\n\\n\\n\\n 28\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 29 of 29\\n\\n\\n VI\\n\\n For the foregoing reasons, we hold (1) that it wasn’t improper for the district\\n\\ncourt to inform the jury about the legal effect of its finding under Florida’s alcohol\\n\\ndefense; (2) that Ermini didn’t present a nonexistent negligent-use-of-force claim\\n\\nand that her negligent-wellness-check claim wasn’t precluded; (3) that Ermini’s\\n\\nlawyer didn’t make a forbidden golden-rule argument; and (4) that any error that\\n\\nthe district court committed in admitting testimony about Lisenbee’s and Hamer’s\\n\\ndismissals was harmless.12 Accordingly, we affirm the jury’s verdict and the\\n\\ndistrict court’s judgment, as well as that court’s denial of Scott’s motion for new\\n\\ntrial.\\n\\nAFFIRMED.\\n\\n\\n\\n\\n12\\n Scott also contends that all of these errors, taken together, resulted in cumulative error\\nsufficient to merit a new trial. Because we find no errors, Scott’s cumulative-error argument\\nnecessarily fails.\\n\\n\\n\\n 29\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4436819/\", \"author_raw\": \"NEWSOM, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WILLIAM PRYOR"},"judge2":{"kind":"string","value":"NEWSOM"},"judge3":{"kind":"string","value":"BRANCH"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"WILLIAM PRYOR\": \", Circuit\", \"NEWSOM\": \", Circuit\", \"BRANCH\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4659566/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Patricia I. Ermini v. Mike Scott\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-09-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-11220 Date Filed: 09/10/2019 Page: 1 of 29\n\n\n [PUBLISH]\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 18-11220\n ________________________\n\n D.C. Docket No. 2:15-cv-00701-GAP-CM\n\nPATRICIA I. ERMINI,\na.k.a. Patricia I. Mapes,\n\n Plaintiff–Appellee,\n\n versus\n\nMIKE SCOTT,\nin his official capacity as Sheriff of Lee County, Florida,\n\n Defendant–Appellant.\n\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n ________________________\n\n (September 10, 2019)\n\nBefore WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.\n\nNEWSOM, Circuit Judge:\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 2 of 29\n\n\n This case arises out of a routine wellness check that went badly awry. The\n\nunderlying episode began with three Lee County deputies stopping by to check on\n\n71-year-old Patricia Ermini at the request of her daughter—and ended with the\n\ndeputies shooting Ermini five times. Ermini—who, incredibly, survived—later\n\nsued, bringing a litany of state- and federal-law claims against the deputies and Lee\n\nCounty Sheriff Mike Scott. Only one claim made it past summary judgment—a\n\nstate-law cause of action against Sheriff Scott in his official capacity, seeking to\n\nhold him vicariously liable for the deputies’ negligence in conducting the check.\n\nThat claim went to trial, the jury ruled in Ermini’s favor, and the district court\n\nthereafter denied Scott’s motion for new trial.\n\n Scott now appeals the judgment against him as well as the court’s post-\n\njudgment order refusing his new-trial request. Scott argues (1) that the district\n\ncourt improperly instructed the jury that if it concluded that he proved Florida’s\n\n“alcohol defense,” Ermini couldn’t recover; (2) that by introducing evidence\n\nregarding certain aspects of the deputies’ conduct during the check, Ermini\n\nimpermissibly pursued a nonexistent and precluded “negligent-use-of-force” claim;\n\n(3) that Ermini’s lawyer made a forbidden “golden-rule” argument when she asked\n\nthe jurors to “imagine if someone was in [their] house”; and (4) that the trial court\n\nabused its discretion by admitting immaterial character evidence concerning two\n\ndeputies’ post-event (and unrelated) terminations from the Lee County Sheriff’s\n\n\n 2\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 3 of 29\n\n\nOffice. Because we find no errors that merit a new trial, we affirm the judgment in\n\nErmini’s favor.\n\n I\n\n A\n\n Following a worrisome telephone conversation, Patricia Ermini’s daughter,\n\nMaine resident Robin LaCasse, called the Lee County Sheriff’s Office to request a\n\nwellness check on her elderly mother. During the call, Ermini had seemed\n\ndistraught—and possibly suicidal—and LaCasse hadn’t been able to get back in\n\ntouch with her. LaCasse told the Sheriff’s Office that Ermini might have been\n\ndrinking wine and that she had a handgun in her home. Shortly after LaCasse’s\n\nphone call, Deputies Richard Lisenbee, Robert Hamer, and Charlene Palmese were\n\ndispatched to Ermini’s home; they knew that Ermini could be intoxicated and that\n\nshe owned a gun.\n\n Lisenbee arrived on the scene first, banged on the door, and yelled “Sheriff’s\n\nOffice,” but got no response. When he opened the unlocked door, Lisenbee found\n\nthe house dark, quiet, and in disarray, an empty wine bottle on the floor. He\n\nretreated out of the house and waited for backup. When Palmese arrived, she and\n\nLisenbee reentered the home and announced themselves, but again got no\n\nresponse. The deputies opted to wait for Hamer before continuing the wellness\n\ncheck. Once all three officers were on the scene, they again announced themselves\n\n\n 3\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 4 of 29\n\n\nand entered the dark living room with their flashlights illuminated and their\n\nweapons drawn. They made their way to the closed double doors leading to\n\nErmini’s master bedroom.\n\n Lisenbee opened the right door and shined his flashlight into the room,\n\nwhere he saw Ermini lying in bed. Ermini awoke, confused by the strangers in her\n\nbedroom—she testified that she remembered asking “who’s there?” and telling the\n\nintruders that she had a gun and to get out of her house. She also testified that she\n\nrecalled the deputies saying that they were with the Sheriff’s Department and her\n\nresponding that she hadn’t called the Sheriff and that they had better get out of her\n\nhouse. Lisenbee began backing out of the bedroom as Ermini, clothed only in her\n\nundergarments, moved toward the door.\n\n The deputies and Ermini recall very differently the critical moments that\n\nfollowed. Hamer testified that Ermini walked toward him with both hands on her\n\ngun, which she pointed directly at him. Ermini doesn’t remember grabbing her\n\ngun or pointing it at anyone. In any event, Hamer, who was outside the bedroom,\n\nfired seven rounds through the partially closed bedroom door, five of which hit\n\nErmini, who collapsed onto the floor. (Further to the parties’ dispute, Ermini’s\n\ngun was found on the floor to the left of where she fell after being shot, and a\n\nbullet from her weapon was later found lodged in the ceiling.) Hamer began\n\nproviding emergency medical care to a still-confused Ermini, who (according to\n\n\n 4\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 5 of 29\n\n\nthe officers and paramedics) repeatedly asked why the deputies were in her home\n\nand why they were trying to kill her. Ermini was taken to the hospital for further\n\ntreatment, and she survived.\n\n B\n\n Ermini sued Deputies Lisenbee, Hamer, and Palmese, as well as Sheriff\n\nScott and William Murphy, an additional officer who hadn’t been on the scene.\n\nAmong other claims, Ermini alleged excessive force and false arrest under the\n\nFourth Amendment, battery, negligent infliction of emotional distress, and\n\nnegligence in conducting the wellness check under Florida law. Only Ermini’s\n\nvicarious-liability claim against Scott for the allegedly negligent wellness check\n\nsurvived summary judgment. That claim went to trial, and the jury ultimately\n\nruled in Ermini’s favor, awarding her $750,000 in damages.\n\n Several aspects of the pre-trial and trial proceedings are relevant to this\n\nappeal. We’ll take them chronologically. First, before trial, Scott submitted a\n\nmotion in limine under Federal Rules of Evidence 403 and 404(b) to exclude\n\nevidence surrounding Lisenbee’s and Hamer’s post-event (and unrelated)\n\nterminations from the Sheriff’s Office. The district court held a telephonic hearing\n\nand denied the motion, stating that it would allow limited questioning about the\n\ntiming of and general reasons for the officers’ terminations but that it would\n\nexclude additional details and written reports. Second, during closing arguments,\n\n\n 5\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 6 of 29\n\n\nErmini’s lawyer asked the jury, “Can you imagine if someone was in your house\n\nthat you wouldn’t try to figure out who is that[?]” Scott’s lawyer objected, stating\n\n“That’s not right, golden rule.” The district court overruled the objection without\n\nfurther elaboration.\n\n The third item pertains to Scott’s “alcohol defense,” which, under Florida\n\nlaw, prevents a plaintiff from recovering damages if either her “normal faculties\n\nwere impaired” or she had a blood-alcohol level of 0.08% or higher, and as a result\n\nshe was more than 50% responsible for her own harm. Fla. Stat. § 768.36(2)(a)–\n\n(b) (2019). The district court instructed the jury that if it found that Scott had\n\nproved the alcohol defense by a preponderance of the evidence, Ermini couldn’t\n\nrecover. A similar statement was included on the special verdict form given to the\n\njury, which informed jurors that if they found in Scott’s favor on the defense, they\n\ndidn’t need to fill out the remainder of the form. Scott objected to the court’s\n\nalcohol-defense instruction at trial.\n\n Following the jury’s verdict, Scott moved for a new trial and renewed his\n\nmotion for judgment as a matter of law. As relevant here, he argued that the\n\nevidence about Lisenbee’s and Hamer’s terminations should have been excluded\n\nand that Ermini had improperly introduced evidence about the deputies’ use of\n\nforce, which Scott said had no place in a negligent-wellness-check case. The\n\n\n\n\n 6\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 7 of 29\n\n\ndistrict court denied both motions. Scott appeals the district court’s judgment and\n\nits order denying his motion for new trial. 1\n\n II\n\n Scott’s first argument challenges the district court’s jury instructions and\n\nverdict-form entry pertaining to Florida’s alcohol defense, which is codified at Fla.\n\nStat. § 768.36. The district court instructed the jury as follows:\n\n On the first defense, the issue for you to decide is whether Patricia\n Ermini was under the influence of any alcoholic beverage to the\n extent that her normal faculties were impaired, or the plaintiff had a\n blood alcohol level of .08 or higher; and whether as a result of the\n influence of such alcoholic beverage, Patricia Ermini was more than\n 50 percent at fault for her own harm.\n\n If you find that the sheriff has proven this defense by a\n preponderance of the evidence, then plaintiff’s claim is barred and\n your verdict is for the sheriff.\n\n(emphasis added). Scott objected to the italicized portion of the charge,\n\nwhich wasn’t included in the parties’ proposed instructions. The verdict form\n\nsimilarly informed the jury that if it found that Scott had proved the alcohol\n\ndefense, it didn’t need to complete the remainder of the form.\n\n Scott contends that he is entitled to a new trial because the district court\n\nimproperly told the jury about the legal effect of any finding under the alcohol\n\ndefense—namely, that if proved the defense would bar Ermini from recovering.\n\n\n1\n Although Scott’s notice of appeal also referenced his renewed motion for judgment as a matter\nof law, he didn’t address that motion in his briefing, so we won’t consider it here.\n\n 7\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 8 of 29\n\n\nThat information, he says, was unnecessary and was likely to evoke sympathy for\n\nErmini. In particular, Scott asserts that just as evidence of a party’s liability\n\ninsurance is inadmissible at trial, see Fed. R. Evid. 411, information about the legal\n\neffect of an alcohol-impairment finding should be verboten since it too has the\n\npotential to improperly influence the jurors’ emotions. We disagree.2\n\n A\n\n Before jumping into the merits, we must determine at the outset whether\n\nstate or federal law governs Scott’s argument. We know, as a general matter, that\n\nin a diversity case in federal court, “[t]he substance of jury instructions . . . is\n\ngoverned by the applicable state law, but questions regarding procedural aspects of\n\njury charges are controlled by federal law and federal rules.” Pate v. Seaboard\n\nR.R., Inc., 819 F.2d 1074, 1081–82 (11th Cir. 1987) (citations omitted). This case,\n\nthough, poses a more specific issue, which turns out to be a question of first\n\nimpression for this Court: What law applies—state or federal—when deciding\n\nwhether a district court judge properly informed the jury about the legal effect of\n\nits finding under state law? More particularly, is informing the jury about the legal\n\neffect of a factual finding bound up in the “substance of [the] jury instructions”\n\n\n2\n “We review jury instructions de novo to determine whether they misstate the law or mislead the\njury to the prejudice of the objecting party.” Palmer v. Bd. of Regents of the Univ. Sys. of Ga.,\n208 F.3d 969, 973 (11th Cir. 2000) (citations omitted). So long as the jury “instructions\naccurately reflect the law,” however, a district court has “wide discretion as to the style and\nwording employed.” McCormick v. Aderholt, 293 F.3d 1254, 1260 (11th Cir. 2002).\n\n 8\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 9 of 29\n\n\nwithin the meaning of Pate, and thus governed by the underlying state law, or is it\n\ninstead a “procedural aspect[]” of the charge governed by federal law?\n\n We join the Seventh Circuit in holding that this issue is controlled by federal\n\nlaw, as it pertains to procedure, not substance. In Beul v. ASSE International, Inc.,\n\n233 F.3d 441 (7th Cir. 2000), the Seventh Circuit faced the question whether state\n\nor federal law governed a district court’s handling of a question posed to it by a\n\njury during its deliberations. The question pertained to the special verdict form,\n\nwhich required the jury “to enter separately . . . the amount of damages and the\n\npercentage of the plaintiff’s comparative fault and not make the ‘bottom line’\n\ncomputation, which involve[d] deducting from the amount of damages that amount\n\ntimes the plaintiff’s percentage of comparative fault.” Id. at 449. In particular, the\n\njury asked, “What bearing do the negligence factors”—i.e., the fault percentages\n\nassigned to the parties—“have on the amounts we may or may not choose to\n\naward?” Id. The judge answered, correctly, that they would indeed have an effect:\n\n“[T]he comparison factor, if you find both parties negligent, has a significant\n\nimpact upon the award that the Court enters.” Id.\n\n In concluding that federal law governed the question whether the judge had\n\nacted properly, the Seventh Circuit began with the proposition that “[r]ules of\n\ngeneral applicability and purely managerial character governing the jury, such as\n\nthe form in which a civil jury is instructed, are quintessentially procedural.” Id.\n\n\n 9\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 10 of 29\n\n\nFrom that premise, the court concluded that a district judge’s decision to inform\n\nthe jury about the legal effect of its findings is an issue of procedure: “We think it\n\nfollows that whether the federal court should try to keep the jury in the dark about\n\nthe legal effect of the jury’s answers to the questions posed to it by the special\n\nverdict is also a question of federal law.” Id. The court wrote that its classification\n\nof the issue as procedural could result either from “an interpretation of [Federal]\n\nRule [of Civil Procedure] 49(a),” which governs special verdicts, or from the\n\napplication of “a federal common law of special verdicts to supplement the rule.”\n\nId. (The same, we think, could be said with respect to Rule 51, which governs jury\n\ninstructions. See Fed. R. Civ. P. 51.)\n\n We agree with the Seventh Circuit’s conclusion that federal law controls.\n\nThe decision whether to inform the jury about the legal effect of its findings—or,\n\nwhether instead, in the Seventh Circuit’s words, to “keep the jury in the dark”—\n\nhas nothing to do with the substance of the applicable legal rule or the merits of the\n\nissues before the court. Instead, it has everything to do with the fair and efficient\n\nmanagement of the trial. To be sure, a party may take issue with the fairness or\n\nefficiency of the district court’s decision; but it must do so by reference to federal\n\nlaw, not state.\n\n\n\n\n 10\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 11 of 29\n\n\n B\n\n So then, does federal law preclude a district court judge from informing\n\njurors about the legal effects of their factual findings? We hold that it doesn’t.\n\n It’s true, of course, that “[a] judge has no general duty to inform the jury of\n\nthe legal consequences of its verdict.” Beul, 233 F.3d at 450 (citations omitted).\n\nAnd it may even be the case that “in some circumstances the giving of such\n\ninformation might interfere with the jury’s appraisal of the facts.” Id. But there is\n\nmost assuredly “no rule against giving the information.” Id. And indeed, we agree\n\nwith the Seventh Circuit that it is “difficult to conceive” of a scenario in which\n\nmerely informing jurors of the legal consequences of their findings—i.e., telling\n\nthem the whole truth—would constitute reversible error. Id. Rule 49 expressly\n\nallows judges to use general verdict forms with special interrogatories, which\n\n“reveal to the jury the legal consequences of its specific findings,” and “there is no\n\npurpose in forbidding [judges] to do the same thing with a special verdict.” Id.\n\nAnd we can think of no reason why a different rule should apply to jury\n\ninstructions. We hold, therefore, that a district court may inform the jury about the\n\nlegal effect of its finding so long as it does so accurately. And here no one\n\ncontends—nor could they—that the court’s instructions were inaccurate.\n\n Scott leans heavily on Harrison v. Gregory, and understandably so, as the\n\ncourt there granted a new trial, in part because the jury was told that if it concluded\n\n\n 11\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 12 of 29\n\n\nthe defendant had proved Florida’s alcohol defense, the plaintiff couldn’t recover.\n\n221 So. 3d 1273, 1277–78 (Fla. Dist. Ct. App. 2017). Harrison, though, is doubly\n\ndistinguishable. First, it arose under state law, and as we’ve just explained, federal\n\nlaw governs whether and under what circumstances a federal district court judge\n\nmay inform the jury about the legal effect of its findings. Second, Harrison is\n\ndifferent in an important respect. The problem there wasn’t so much that the jury\n\nfound out about the legal effect of its finding regarding Florida’s alcohol defense,\n\nbut rather that the plaintiff’s lawyer had, in closing, attempted to “inflame the\n\nminds and passions of the jurors” by harping on the unfairness of the statutory\n\ndefense: “By the way,” he said, “50 percent or more at fault, there’s no recovery.”\n\nId. at 1277. 3 The situation here, where the district court impassively—and\n\naccurately—instructed the jury concerning the legal effect of its alcohol-defense\n\nfinding, strikes us as entirely different. Walther v. Omaha Public Power District,\n\n412 F.2d 1164 (8th Cir. 1969), on which Scott also relies, is also off-point. There,\n\nthe Eighth Circuit merely concluded that the legal effect of a jury’s finding needn’t\n\nnecessarily be included in a jury instruction, not that it can’t be included. See id. at\n\n1169–70.\n\n\n3\n In this connection, it is worth noting that Scott’s own lawyer made a similar comment during\nhis closing argument here: “[B]y the way, if [Ermini’s] own intoxication impairment factored\ninto this incident, precipitated the incident, caused the incident, then this claim is barred.” He\nwent on to tell the jurors that if they found in Scott’s favor with regard to the alcohol defense,\n“that ends this case.”\n\n 12\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 13 of 29\n\n\n To summarize: Federal law controls this issue, and federal law doesn’t\n\npreclude district court judges from accurately informing jurors of the effects of\n\ntheir findings—in either their instructions or their verdict forms. Accordingly, it\n\nwasn’t improper for the judge here to provide an accurate statement of law\n\nexplaining the legal effect of the jury’s finding under Florida’s alcohol defense.\n\n III\n\n Scott next asserts that he is entitled to a new trial on the ground that Ermini\n\neffectively used her negligent-wellness-check claim as a Trojan Horse to reassert\n\nher claims about the deputies’ use of force, which the district court had dismissed\n\npretrial. Although his position is difficult to discern, Scott seems to be making\n\neither (or both) of two different arguments. First, he contends that Ermini’s\n\nintroduction of evidence about the deputies’ use of force converted her otherwise\n\ncognizable (even if he would say losing) negligent-wellness-check claim into an\n\ninvalid “negligent-use-of-force” claim that Florida law doesn’t recognize. Second,\n\nand separately, because the district court rejected Ermini’s claims surrounding the\n\nofficers’ use of force at summary judgment, Scott asserts that her claim is\n\nprecluded. We disagree on both counts.4\n\n\n\n4\n Our “review of a district court’s denial of a motion for new trial is very limited.” Blu-J, Inc. v.\nKemper C.P.A. Grp., 916 F.2d 637, 643 (11th Cir. 1990). “Absent an abuse of discretion, the\ndistrict court’s disposition of a motion for a new trial will not be disturbed on appeal, especially\nwhen that disposition was to deny the motion.” Id.\n\n 13\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 14 of 29\n\n\n A\n\n We’ll start with Scott’s contention that Ermini used the guise of a negligent-\n\nwellness-check claim to try a non-cognizable negligent-use-of-force claim. And\n\nwe’ll begin at the beginning, with Ermini’s complaint. Ermini’s complaint\n\nexpressly alleged that Scott’s deputies negligently performed a wellness check—\n\nnot that they engaged in a negligent use of force. (To be sure, Ermini asserted that\n\nthe deputies used force excessively, in violation of federal constitutional standards,\n\nbut not that they used force negligently, in violation of state law.) In particular,\n\nErmini alleged that “S[cott], acting through his deputies, owed a special duty of\n\ncare to [her] because of the manner in which his deputies responded to a 911 call\n\nfor a wellness check,” and that the deputies later “fail[ed] to exercise reasonable\n\ncare in conducting the wellness check.” And the district court certainly seemed to\n\nappreciate the distinction: While the court granted summary judgment in the\n\ndeputies’ favor on Ermini’s excessive-force claims, it denied them summary\n\njudgment on the negligent-wellness-check claim, finding that “triable issues of fact\n\nexist[ed] as to whether the deputies exercised reasonable care in carrying out the\n\nwelfare check, which increased the risk of harm to [Ermini], and whether\n\n[Ermini’s] actions were a reasonably foreseeable consequence of the negligent acts\n\nor omissions of the deputies.”\n\n\n\n\n 14\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 15 of 29\n\n\n Even so, Scott insists that as matters unfolded at trial, Ermini’s negligent-\n\nwellness-check claim devolved into a non-cognizable—and thus forbidden—\n\nnegligent-use-of-force claim. We don’t think so. Ermini didn’t invent and litigate\n\na new cause of action; rather, there is simply an inevitable overlap between the\n\nfacts underlying her negligent-wellness-check claim and those surrounding the\n\ndeputies’ use of force. And although Florida doesn’t recognize claims for\n\nnegligent use of force, it does recognize the commonsense proposition that\n\n“distinct act[s] of negligence” can occur in conjunction with alleged excessive-\n\nforce incidents. City of Miami v. Sanders, 672 So. 2d 46, 48 (Fla. Dist. Ct. App.\n\n1996). Just so here—the wellness check involved distinct acts of alleged\n\nnegligence during which an allegedly excessive use of force occurred.\n\n To bolster his claim, Scott asserts that “[m]uch of [Ermini’s] counsel’s\n\nquestions and argument” focused on the officers’ use of force, but he musters only\n\ntwo examples from the trial record: (1) Ermini’s lawyer suggesting that she never\n\npointed her gun at the deputies; and (2) her lawyer referencing the deputies’ failure\n\nto issue a warning prior to opening fire. Two instances do not “much” of Ermini’s\n\nargument make. Moreover, the facts surrounding the use of force are inextricably\n\nintertwined with those surrounding the wellness check—it’s all one seamless story.\n\nAccordingly, it seems to us essentially inevitable that Ermini’s lawyer properly\n\nwould elicit testimony pertaining to the use of force in the course of trying the\n\n\n 15\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 16 of 29\n\n\nnegligent-wellness-check claim. Indeed, excluding all information about the\n\nofficers’ force would have made it nearly impossible for the jury to do its job.\n\nCould jurors have even possibly determined Ermini’s damages, for instance, if they\n\nhad been precluded from hearing any information about the specific conduct that\n\ncaused her injury?\n\n In any event, the fact that Ermini’s lawyer mentioned a few details about the\n\nforce used by the deputies doesn’t negate or invalidate the trial’s overarching focus\n\non their negligence in performing the wellness check, nor does it convert Ermini’s\n\nnegligent-wellness-check claim into a nonexistent negligent-use-of-force claim.\n\nThe complaint, the jury instructions, and the verdict form all properly focused on\n\nthe vicarious-liability claim against Scott and his statutory defenses. And when\n\nErmini’s lawyer examined her witnesses—particularly the officers—she\n\nquestioned them extensively about their conduct in connection with the wellness\n\ncheck even before any shots were fired. She asked the deputies, for instance, about\n\ntheir dark uniforms, whether the lights outside Ermini’s home were on, whether the\n\nhouse’s interior was dark and if (and how) they used their flashlights, whether their\n\npatrol cars were visible from the road, whether they checked the perimeter of the\n\nhome before entering, whether they used Ermini’s name when speaking to her, and\n\nwhat, if any, wellness-check-related training or experience they had received prior\n\nto the incident. None of those questions had anything to do with the officers’ use\n\n\n 16\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 17 of 29\n\n\nof force. The fact that Ermini’s lawyer also occasionally touched on force-related\n\ntopics doesn’t convert the cause of action. The circumstances surrounding the\n\nwellness check and the use of force are bound up in the same unfortunate\n\nincident—it’s difficult, if not impossible, to tell the former story without\n\noccasionally verging into the latter.\n\n B\n\n Scott separately contends—albeit obliquely—that Ermini’s introduction of\n\nevidence pertaining to the deputies’ use of force should have been barred by some\n\nform of preclusion doctrine. Again, we disagree.\n\n To the extent that any such doctrine is in play here, we think it is “direct\n\nestoppel,” which is a variety of issue preclusion. DuChateau v. Camp, Dresser &\n\nMcKee, Inc., 713 F.3d 1298, 1301 (11th Cir. 2013). “Direct estoppel, as opposed\n\nto collateral estoppel, governs the preclusive effect of a litigated issue in a separate\n\nproceeding within a single suit.” Cotton v. Heyman, 63 F.3d 1115, 1118 n.1 (D.C.\n\nCir. 1995); see also DuChateau, 713 F.3d at 1301–03. To the extent Scott means\n\nto argue that Ermini was barred from “relitigating” at trial force-related facts that\n\nhad already been adjudicated against her at summary judgment—in particular,\n\nwhether Ermini pointed her gun at the deputies and whether they warned her\n\nbefore shooting—his argument fails. A partial summary judgment on some of a\n\nplaintiff’s claims cannot directly estop other claims that proceed to trial.\n\n\n 17\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 18 of 29\n\n\n We have held that a jury verdict on one claim can directly estop another\n\nclaim in the same suit. DuChateau, 713 F.3d at 1301–02 (holding that a jury\n\nverdict on a claim of employment retaliation directly estopped the plaintiff’s\n\nappeal of the district court’s rejection of her claim of pregnancy discrimination\n\nbecause both claims required proof of adverse employment action). But partial\n\nsummary judgment is materially different from a jury verdict. Unlike a jury\n\nverdict, a partial summary judgment is not a “final decision” under 28 U.S.C.\n\n§ 1291. State Treasurer of Michigan v. Barry, 168 F.3d 8, 11 (11th Cir. 1999).5\n\nAccordingly, the district court’s interlocutory order rejecting some of Ermini’s\n\nclaims at summary judgment does not preclude her negligent-wellness-check\n\nclaim. 6\n\n\n\n\n5\n The only way for Ermini to obtain appellate review of the district court’s partial summary\njudgment against her would have been to seek discretionary interlocutory review, 28 U.S.C.\n§ 1292(b), or extraordinary relief such as a writ of mandamus. And a failure to seek permissive\ninterlocutory review does not transform an otherwise nonfinal order into a final decision entitled\nto preclusive effect. 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal\nPractice and Procedure § 4418, at 524 (3d ed. 2016) (“[F]ailure to seize opportunities for\navowedly interlocutory review should not transform a potentially reviewable order into issue\npreclusion.”).\n6\n Moreover, and in any event, both of the issues on which Scott seems to predicate his estoppel-\nbased argument—whether Ermini pointed her gun at the deputies and whether they warned her\nbefore shooting—were assumed in Ermini’s favor at summary judgment, not against her; the\ndistrict court accepted for the sake of argument that Ermini didn’t point her gun at the deputies\nand that they didn’t warn her before opening fire, but granted summary judgment on her\nexcessive-force claim anyway.\n\n 18\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 19 of 29\n\n\n IV\n\n Next, the “golden-rule.” Scott objects to the following statement that\n\nErmini’s lawyer made at closing: “The fact of the matter is that . . . actually, the\n\nevidence supports Ms. Ermini’s version, which is a logical thing. Can you imagine\n\nif someone was in your house that you wouldn’t try to figure out who is that[?]”\n\n(emphasis added). Scott asserts that this statement violates the prohibition on\n\n“golden-rule” arguments. We disagree. 7\n\n A\n\n A “golden-rule” argument invites jurors to “put themselves in the shoes of\n\nthe plaintiff and do unto him as they would have him do unto them under similar\n\ncircumstances.” Ivy v. Sec. Barge Lines, Inc., 585 F.2d 732, 741 (5th Cir. 1978).\n\nThe risk is that such a statement asks jurors to “decide the case on the basis of\n\nsympathy rather than from an objective review of the evidence.” Dempsey v. Mac\n\nTowing, Inc., 876 F.2d 1538, 1540 n.1 (11th Cir. 1989). An unremedied golden-\n\nrule argument will ordinarily result in reversal. Id.\n\n A golden-rule objection typically arises when a lawyer asks jurors to place\n\nthemselves in the plaintiff’s position with respect to the calculation of damages.\n\nSee, e.g., Ivy, 585 F.2d at 741 & n.10. For example, asking the jury, “If you were\n\n\n7\n We review a district court’s ruling regarding allegedly improper statements by counsel for an\nabuse of discretion. Allstate Ins. Co. v. James, 845 F.2d 315, 318 (11th Cir. 1988) (citation\nomitted).\n\n 19\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 20 of 29\n\n\nin the plaintiff’s shoes, how much do you think you would deserve?” would be a\n\nclear-cut violation. “The rationale for prohibiting such an argument is that the\n\njury’s sympathy will be unfairly aroused, resulting in a disproportionate award of\n\ndamages.” Burrage v. Harrell, 537 F.2d 837, 839 (5th Cir. 1976); see also Har-\n\nPen Truck Lines, Inc. v. Mills, 378 F.2d 705, 714–15 (5th Cir. 1967). The question\n\nhere is whether Ermini’s lawyer’s statement—which pertained not to the\n\nappropriate measure of damages but rather to Scott’s liability for the deputies’\n\nactions—violated the prohibition on golden-rule arguments as explicated in our\n\ncase law. We conclude that it didn’t.\n\n B\n\n Although many courts treat golden-rule arguments as universally improper, 8\n\nwe have historically permitted certain golden-rule-ish statements in the liability\n\ncontext. Most notably for present purposes, in McNely v. Ocala Star-Banner\n\nCorp., we held that defense counsel didn’t violate the prohibition on golden-rule\n\narguments when he “invit[ed] the jury to put itself in the defendants’ position when\n\n\n\n8\n See, e.g., Caudle v. District of Columbia, 707 F.3d 354, 360 (D.C. Cir. 2013) (holding that “[i]t\nis no more appropriate for a jury to decide a defendant’s liability . . . based on an improper\nconsideration than to use the same consideration to determine damages”); Mich. First Credit\nUnion v. Cumis Ins Soc’y, Inc., 641 F.3d 240, 249 (6th Cir. 2011); Ins. Co. of N. Am., Inc. v. U.S.\nGypsum Co., 870 F.2d 148, 154 (4th Cir. 1989); Edwards v. City of Philadelphia, 860 F.2d 568,\n574–75 (3d Cir. 1988); Joan W. v. City of Chicago, 771 F.2d 1020, 1022 (7th Cir. 1985) (stating\nthat “[t]here is no reason for . . . a distinction [between different types of golden rule statements]\nbecause the jury’s departure from its neutral role is equally inappropriate regardless of the issue\nat stake”).\n\n 20\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 21 of 29\n\n\nconsidering [plaintiff’s] alleged work place misconduct and evaluating whether he\n\nwas terminated because of his disability.” 99 F.3d 1068, 1071 n.3 (11th Cir.\n\n1996). That statement, we held, “was not in any way directed to the question of\n\ndamages; rather it related only to the reasonableness of appellee’s actions”—an\n\nissue that was squarely, and properly, before the jury. Id. (emphasis added) (citing\n\nBurrage, 537 F.2d at 839).\n\n Somewhat farther afield—but in the same vein—we have permitted liability-\n\nrelated golden-rule statements in criminal cases. In Reese v. Secretary, Florida\n\nDepartment of Corrections, for instance, we held that a prosecutor’s comment that\n\na victim experienced “every woman’s wors[t] nightmare,” as well as statements\n\nurging the jury to think about “what was going on in [the victim’s] mind,” weren’t\n\nimproper golden-rule arguments because the government had to show that the\n\ncrime was “designed to inflict a high degree of pain with utter indifference to . . .\n\nthe suffering of others” in order to prove an aggravating factor. 675 F.3d 1277,\n\n1292 (11th Cir. 2012) (first alteration in original) (quoting citation omitted). So\n\ntoo, in Davis v. Kemp, we deemed the following statement permissible in a death-\n\npenalty case, because the jury could properly consider the defendant’s “future\n\ndangerousness”: “Ask yourselves this question, how would you feel living in this\n\ncommunity if you looked out of your window one night and saw [the defendant]\n\nwalking down the street coming up toward your house. If that wouldn’t put a\n\n\n 21\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 22 of 29\n\n\nfeeling of cold terror in your heart, what would?” 829 F.2d 1522, 1528–29 (11th\n\nCir. 1987).9\n\n The common tie that binds the liability-related golden-rule-ish statements\n\nthat we have deemed permissible? Their connection to an element or factor\n\ngenuinely at issue in the case, or their focus on either a party’s behavior or\n\nperception of an incident. Here, Ermini’s lawyer’s argument went directly to the\n\nreasonableness of Ermini’s response to the deputies’ actions during the wellness\n\ncheck, which bears directly on the foreseeability of her actions—both issues that\n\njurors would necessarily have had to grapple with in deciding Ermini’s negligent-\n\nwellness-check claim. The statement seems to us essentially indistinguishable\n\nfrom the reasonableness-related statement that we allowed in McNely.\n\n Admittedly, Ermini’s lawyer could have chosen her words more carefully—\n\nthere’s plenty of case law warning attorneys to steer clear of potentially\n\ninflammatory closing arguments, see, e.g., United States v. Kopituk, 690 F.2d\n\n1289, 1342–43 (11th Cir. 1982)—but, her lone statement in closing didn’t run\n\nafoul of the prohibition on golden-rule statements as we have understood and\n\napplied it.\n\n\n\n9\n See also, e.g., Kennedy v. Dugger, 933 F.2d 905, 913 (11th Cir. 1991) (permitting the following\ncomment about a first-degree-murder victim’s experience: “Can you imagine, in your own\nliving room not bothering a soul on a Saturday afternoon? . . . [The defendant] walked . . . down\nto your own house, and, a total stranger, because you got in his way, destroys you[?]”).\n\n 22\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 23 of 29\n\n\n What’s more, even if the statement had crossed the line, “[f]or reversible\n\nerror to be found in a closing argument, the challenged argument must be ‘plainly\n\nunwarranted and clearly injurious.’” Goldsmith v. Bagby Elevator Co., 513 F.3d\n\n1261, 1282 (11th Cir. 2008) (quoting Peterson v. Willie, 81 F.3d 1033, 1036 (11th\n\nCir. 1996)). There is no evidence to suggest that Ermini’s lawyer’s statement was\n\n“plainly unwarranted”—again, it seems at the very least to fall within the zone of\n\nstatements that we have allowed—let alone “clearly injurious” to Scott’s case. Id.\n\nMoreover, when evaluating the prejudice resulting from an attorney’s comments,\n\nwe examine comments in the context of the entire trial and any curative\n\ninstruction, United States v. Hernandez, 145 F.3d 1433, 1438–39 (11th Cir. 1998),\n\nand here the district court judge explicitly instructed the jurors that they “must not\n\nbe influenced in any way by either sympathy or prejudice for or against either\n\nparty,” and that they “must follow the law . . . even if [they] do not agree with it.”\n\n V\n\n Finally, Scott challenges the admission of Lisenbee’s and Hamer’s\n\ntestimony about their post-event terminations from the Sheriff’s Office—which all\n\nagree had nothing to do with the incident involving Ermini but which, Scott says,\n\ntended to paint the deputies in a bad light. The district court allowed limited\n\nquestioning about the timing of and general reasons for Lisenbee’s and Hamer’s\n\nfirings, but it excluded any related documents containing further details. In\n\n\n 23\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 24 of 29\n\n\nparticular, when examining Lisenbee, Ermini’s lawyer briefly asked whether he\n\nhad been dismissed from the Sheriff’s Office; questioning revealed only that\n\nLisenbee had been a probationary officer at the time of the Ermini incident and that\n\nhe hadn’t “me[t his] probationary requirements.” Ermini’s lawyer also confirmed\n\nthat Hamer had been fired for “[c]onduct unbecoming” after he “violate[d] a policy\n\nand fail[ed] to disclose it.” That was the extent of the evidence—no additional\n\ndetails were elicited, no explanatory records or documentation were introduced,\n\nand the remainder of the deputies’ examinations focused on the incident at issue.10\n\n Because the issue at trial was whether Scott was vicariously liable for the\n\ndeputies’ own failure to use reasonable care in conducting the wellness check,\n\nScott contends that allowing Ermini’s lawyer to question Lisenbee and Hamer\n\nabout their terminations—even to a limited extent—violated Federal Rules of\n\nEvidence 404(b) and 403. We discuss the application of those rules in turn.11\n\n\n\n\n10\n As a result of the judge’s exclusion of any additional evidence surrounding the deputies’\nterminations, jurors didn’t learn (1) that Lisenbee’s failure to meet probationary requirements\nwas partially related to his “inability to control scenes or suspects through verbal commands”\nand that he “had started remedial training two weeks before this incident”; or (2) that Hamer was\ndismissed after “an unrelated incident where inappropriate materials were found on his work\ncomputer.”\n11\n We review a district court’s evidentiary rulings for abuse of discretion. United States v.\nBrown, 665 F.3d 1239, 1247 (11th Cir. 2011).\n\n 24\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 25 of 29\n\n\n A\n\n In relevant part, Federal Rule of Evidence 404(b) states that “[e]vidence of a\n\ncrime, wrong, or other act is not admissible to prove a person’s character in order\n\nto show that on a particular occasion the person acted in accordance with the\n\ncharacter.” Fed. R. Evid. 404(b)(1). The rule’s language is broad—it applies to\n\nany “person[,]” not just to plaintiffs, defendants, or parties. Even so, we have held\n\nin both the civil and criminal contexts that Rule 404(b) does not—at least of its\n\nown force—apply when, as here, the challenged other-bad-acts evidence implicates\n\na witness or another non-party to the litigation. See United States v. Morano, 697\n\nF.2d 923, 926 (11th Cir. 1983) (concluding, in a criminal case, that “Rule 404(b)\n\ndoes not control” in instances where the evidence in question does not relate to acts\n\nof the defendant, but rather to “an extraneous offense committed by someone other\n\nthan the defendant”); Glados, Inc. v. Reliance Ins. Co., 888 F.2d 1309, 1311–12\n\n(11th Cir. 1987) (citing and applying Morano in the context of a civil case).\n\n As we did in United States v. Sellers, we once again “question Morano’s\n\nreasoning,” which seems to us to flatly contradict Rule 404(b)’s clear text:\n\n The plain language of Rule 404(b) refers to “persons,” not\n “defendants,” and Rule 404(a) carves out specific exceptions relating\n to the “accused,” “victim[s],” and “witness[es].” Where, as\n in Morano and this case, the non-defendant’s “extraneous” act, if\n proved, directly supports the guilt of the defendant as to the crime\n charged, that “extraneous” act should not, it seems, be subject to proof\n through the improper character-evidence route condemned by Rule\n\n\n 25\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 26 of 29\n\n\n 404. Indeed, it is difficult to see how the non-defendant’s act could be\n described as “extraneous” in such circumstances.\n\n906 F.2d 597, 604 n.11 (1990). We recognize, though, as we did in Sellers, that\n\nwe are “bound by [Morano] as precedent”—especially as extended to the civil-\n\nlitigation context in Glados. Id. And finally we note—more happily, and again as\n\nwe did in Sellers—that Rule 404(b)’s non-applicability probably doesn’t make\n\nmuch of a difference, because “Morano held that the factors articulated in Rule\n\n404 ‘should be considered in weighing the balance between the relevancy of this\n\nevidence and its prejudice under Rule 403.’” Sellers, 906 F.2d at 604 n.11\n\n(quoting Morano, 697 F.2d at 926). “The functional analysis is thus largely the\n\nsame”—it just takes place under the auspices of Rule 403 rather than Rule 404(b).\n\nId.\n\n So we conclude—in accord with existing precedent, but dubitante—that\n\nRule 404(b) doesn’t apply here, and we turn to consider whether the admission of\n\nevidence pertaining to Lisenbee’s and Hamer’s terminations violated Rule 403 and,\n\nif so, whether the error in admitting it was harmless.\n\n B\n\n Rule 403 states that a court “may exclude relevant evidence if its probative\n\nvalue is substantially outweighed by a danger of . . . unfair prejudice, confusing the\n\nissues, misleading the jury, undue delay, wasting time, or needlessly presenting\n\ncumulative evidence.” Fed. R. Evid. 403. This Court affords district court judges\n 26\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 27 of 29\n\n\n“the broadest discretion in determining whether evidence should be excluded under\n\nRule 403.” United States v. Costa, 947 F.2d 919, 924 (11th Cir. 1991) (quoting\n\ncitation omitted).\n\n Taking Rule 404(b) considerations into account—as Morano and Sellers\n\nrequire—we think the challenged testimony here could easily be understood to\n\nconvey precisely the kind of propensity-based inference that the Rules of Evidence\n\naim to prevent—namely, that Lisenbee and Hamer were bad cops (why else the\n\nfirings?) with a penchant to act badly, just as Ermini alleges they did the night of\n\nthe wellness check. Moreover, the circumstances in this case are unique in that\n\nwhile Scott is the defendant, he is only vicariously so—practically speaking, the\n\ndeputies’ actions are on trial. Accordingly, it seems to us that “the policies\n\nunderlying Rule 404(b)”—which again, we are instructed to fold into our Rule 403\n\nanalysis— are squarely applicable. Morano, 697 F.2d at 926. All things\n\nconsidered, we think it clear that the prejudicial value of this evidence could be\n\nthought to substantially outweigh its probative value.\n\n That, though, isn’t the end of the inquiry. Even if a district court abuses its\n\ndiscretion by admitting prejudicial character evidence, evidentiary error “must\n\n[still] rise above the threshold of harmless error” to warrant reversal. Perry v.\n\nState Farm Fire & Cas. Co., 734 F.2d 1441, 1446 (11th Cir. 1984) (quoting\n\nWallace v. Ener, 521 F.2d 215, 222 (5th Cir. 1975)). The burden of proving that\n\n\n 27\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 28 of 29\n\n\nan error was not harmless rests with the party asserting it, who must establish that\n\nthe error “affect[ed his] . . . substantial rights.” Id. “If . . . the error did not\n\ninfluence the jury, or had but very slight effect, the verdict and the judgment\n\nshould stand . . . .” Kotteakos v. United States, 328 U.S. 750, 764 (1946).\n\n Although we think the district court may well have abused its discretion in\n\nadmitting Lisenbee’s and Hamer’s testimony, we conclude that any error was\n\nharmless, for several reasons. First, Ermini’s lawyer’s questioning of the witnesses\n\nwas brief and was largely limited to generalities about their dismissals; the district\n\ncourt properly excluded explanatory records and documents, which would have\n\nintroduced additional details. Second, Ermini’s lawyer asked all of her witnesses\n\nabout their employment history and current job status, save for those who appeared\n\nin uniform and whose status was therefore obvious—so there wasn’t any undue\n\nfocus on Lisenbee and Hamer. Third, Lisenbee and Hamer clarified on cross-\n\nexamination that they were not terminated—or even disciplined or criticized—as a\n\nresult of anything they did (or didn’t do) in connection with the Ermini incident,\n\nand, further, that the Sheriff’s Office never even concluded that they “violated\n\npolicy” during the wellness check.\n\n Because we conclude that Scott hasn’t shown that the deputies’ testimony\n\nabout their terminations affected his substantial rights, we find no reversible error.\n\n\n\n\n 28\n\f Case: 18-11220 Date Filed: 09/10/2019 Page: 29 of 29\n\n\n VI\n\n For the foregoing reasons, we hold (1) that it wasn’t improper for the district\n\ncourt to inform the jury about the legal effect of its finding under Florida’s alcohol\n\ndefense; (2) that Ermini didn’t present a nonexistent negligent-use-of-force claim\n\nand that her negligent-wellness-check claim wasn’t precluded; (3) that Ermini’s\n\nlawyer didn’t make a forbidden golden-rule argument; and (4) that any error that\n\nthe district court committed in admitting testimony about Lisenbee’s and Hamer’s\n\ndismissals was harmless.12 Accordingly, we affirm the jury’s verdict and the\n\ndistrict court’s judgment, as well as that court’s denial of Scott’s motion for new\n\ntrial.\n\nAFFIRMED.\n\n\n\n\n12\n Scott also contends that all of these errors, taken together, resulted in cumulative error\nsufficient to merit a new trial. Because we find no errors, Scott’s cumulative-error argument\nnecessarily fails.\n\n\n\n 29\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Patricia I. Ermini v. Mike Scott\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-09-10\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-11220 Date Filed: 09/10/2019 Page: 1 of 29\\n\\n\\n [PUBLISH]\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-11220\\n ________________________\\n\\n D.C. Docket No. 2:15-cv-00701-GAP-CM\\n\\nPATRICIA I. ERMINI,\\na.k.a. Patricia I. Mapes,\\n\\n Plaintiff–Appellee,\\n\\n versus\\n\\nMIKE SCOTT,\\nin his official capacity as Sheriff of Lee County, Florida,\\n\\n Defendant–Appellant.\\n\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (September 10, 2019)\\n\\nBefore WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.\\n\\nNEWSOM, Circuit Judge:\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 2 of 29\\n\\n\\n This case arises out of a routine wellness check that went badly awry. The\\n\\nunderlying episode began with three Lee County deputies stopping by to check on\\n\\n71-year-old Patricia Ermini at the request of her daughter—and ended with the\\n\\ndeputies shooting Ermini five times. Ermini—who, incredibly, survived—later\\n\\nsued, bringing a litany of state- and federal-law claims against the deputies and Lee\\n\\nCounty Sheriff Mike Scott. Only one claim made it past summary judgment—a\\n\\nstate-law cause of action against Sheriff Scott in his official capacity, seeking to\\n\\nhold him vicariously liable for the deputies’ negligence in conducting the check.\\n\\nThat claim went to trial, the jury ruled in Ermini’s favor, and the district court\\n\\nthereafter denied Scott’s motion for new trial.\\n\\n Scott now appeals the judgment against him as well as the court’s post-\\n\\njudgment order refusing his new-trial request. Scott argues (1) that the district\\n\\ncourt improperly instructed the jury that if it concluded that he proved Florida’s\\n\\n“alcohol defense,” Ermini couldn’t recover; (2) that by introducing evidence\\n\\nregarding certain aspects of the deputies’ conduct during the check, Ermini\\n\\nimpermissibly pursued a nonexistent and precluded “negligent-use-of-force” claim;\\n\\n(3) that Ermini’s lawyer made a forbidden “golden-rule” argument when she asked\\n\\nthe jurors to “imagine if someone was in [their] house”; and (4) that the trial court\\n\\nabused its discretion by admitting immaterial character evidence concerning two\\n\\ndeputies’ post-event (and unrelated) terminations from the Lee County Sheriff’s\\n\\n\\n 2\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 3 of 29\\n\\n\\nOffice. Because we find no errors that merit a new trial, we affirm the judgment in\\n\\nErmini’s favor.\\n\\n I\\n\\n A\\n\\n Following a worrisome telephone conversation, Patricia Ermini’s daughter,\\n\\nMaine resident Robin LaCasse, called the Lee County Sheriff’s Office to request a\\n\\nwellness check on her elderly mother. During the call, Ermini had seemed\\n\\ndistraught—and possibly suicidal—and LaCasse hadn’t been able to get back in\\n\\ntouch with her. LaCasse told the Sheriff’s Office that Ermini might have been\\n\\ndrinking wine and that she had a handgun in her home. Shortly after LaCasse’s\\n\\nphone call, Deputies Richard Lisenbee, Robert Hamer, and Charlene Palmese were\\n\\ndispatched to Ermini’s home; they knew that Ermini could be intoxicated and that\\n\\nshe owned a gun.\\n\\n Lisenbee arrived on the scene first, banged on the door, and yelled “Sheriff’s\\n\\nOffice,” but got no response. When he opened the unlocked door, Lisenbee found\\n\\nthe house dark, quiet, and in disarray, an empty wine bottle on the floor. He\\n\\nretreated out of the house and waited for backup. When Palmese arrived, she and\\n\\nLisenbee reentered the home and announced themselves, but again got no\\n\\nresponse. The deputies opted to wait for Hamer before continuing the wellness\\n\\ncheck. Once all three officers were on the scene, they again announced themselves\\n\\n\\n 3\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 4 of 29\\n\\n\\nand entered the dark living room with their flashlights illuminated and their\\n\\nweapons drawn. They made their way to the closed double doors leading to\\n\\nErmini’s master bedroom.\\n\\n Lisenbee opened the right door and shined his flashlight into the room,\\n\\nwhere he saw Ermini lying in bed. Ermini awoke, confused by the strangers in her\\n\\nbedroom—she testified that she remembered asking “who’s there?” and telling the\\n\\nintruders that she had a gun and to get out of her house. She also testified that she\\n\\nrecalled the deputies saying that they were with the Sheriff’s Department and her\\n\\nresponding that she hadn’t called the Sheriff and that they had better get out of her\\n\\nhouse. Lisenbee began backing out of the bedroom as Ermini, clothed only in her\\n\\nundergarments, moved toward the door.\\n\\n The deputies and Ermini recall very differently the critical moments that\\n\\nfollowed. Hamer testified that Ermini walked toward him with both hands on her\\n\\ngun, which she pointed directly at him. Ermini doesn’t remember grabbing her\\n\\ngun or pointing it at anyone. In any event, Hamer, who was outside the bedroom,\\n\\nfired seven rounds through the partially closed bedroom door, five of which hit\\n\\nErmini, who collapsed onto the floor. (Further to the parties’ dispute, Ermini’s\\n\\ngun was found on the floor to the left of where she fell after being shot, and a\\n\\nbullet from her weapon was later found lodged in the ceiling.) Hamer began\\n\\nproviding emergency medical care to a still-confused Ermini, who (according to\\n\\n\\n 4\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 5 of 29\\n\\n\\nthe officers and paramedics) repeatedly asked why the deputies were in her home\\n\\nand why they were trying to kill her. Ermini was taken to the hospital for further\\n\\ntreatment, and she survived.\\n\\n B\\n\\n Ermini sued Deputies Lisenbee, Hamer, and Palmese, as well as Sheriff\\n\\nScott and William Murphy, an additional officer who hadn’t been on the scene.\\n\\nAmong other claims, Ermini alleged excessive force and false arrest under the\\n\\nFourth Amendment, battery, negligent infliction of emotional distress, and\\n\\nnegligence in conducting the wellness check under Florida law. Only Ermini’s\\n\\nvicarious-liability claim against Scott for the allegedly negligent wellness check\\n\\nsurvived summary judgment. That claim went to trial, and the jury ultimately\\n\\nruled in Ermini’s favor, awarding her $750,000 in damages.\\n\\n Several aspects of the pre-trial and trial proceedings are relevant to this\\n\\nappeal. We’ll take them chronologically. First, before trial, Scott submitted a\\n\\nmotion in limine under Federal Rules of Evidence 403 and 404(b) to exclude\\n\\nevidence surrounding Lisenbee’s and Hamer’s post-event (and unrelated)\\n\\nterminations from the Sheriff’s Office. The district court held a telephonic hearing\\n\\nand denied the motion, stating that it would allow limited questioning about the\\n\\ntiming of and general reasons for the officers’ terminations but that it would\\n\\nexclude additional details and written reports. Second, during closing arguments,\\n\\n\\n 5\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 6 of 29\\n\\n\\nErmini’s lawyer asked the jury, “Can you imagine if someone was in your house\\n\\nthat you wouldn’t try to figure out who is that[?]” Scott’s lawyer objected, stating\\n\\n“That’s not right, golden rule.” The district court overruled the objection without\\n\\nfurther elaboration.\\n\\n The third item pertains to Scott’s “alcohol defense,” which, under Florida\\n\\nlaw, prevents a plaintiff from recovering damages if either her “normal faculties\\n\\nwere impaired” or she had a blood-alcohol level of 0.08% or higher, and as a result\\n\\nshe was more than 50% responsible for her own harm. Fla. Stat. § 768.36(2)(a)–\\n\\n(b) (2019). The district court instructed the jury that if it found that Scott had\\n\\nproved the alcohol defense by a preponderance of the evidence, Ermini couldn’t\\n\\nrecover. A similar statement was included on the special verdict form given to the\\n\\njury, which informed jurors that if they found in Scott’s favor on the defense, they\\n\\ndidn’t need to fill out the remainder of the form. Scott objected to the court’s\\n\\nalcohol-defense instruction at trial.\\n\\n Following the jury’s verdict, Scott moved for a new trial and renewed his\\n\\nmotion for judgment as a matter of law. As relevant here, he argued that the\\n\\nevidence about Lisenbee’s and Hamer’s terminations should have been excluded\\n\\nand that Ermini had improperly introduced evidence about the deputies’ use of\\n\\nforce, which Scott said had no place in a negligent-wellness-check case. The\\n\\n\\n\\n\\n 6\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 7 of 29\\n\\n\\ndistrict court denied both motions. Scott appeals the district court’s judgment and\\n\\nits order denying his motion for new trial. 1\\n\\n II\\n\\n Scott’s first argument challenges the district court’s jury instructions and\\n\\nverdict-form entry pertaining to Florida’s alcohol defense, which is codified at Fla.\\n\\nStat. § 768.36. The district court instructed the jury as follows:\\n\\n On the first defense, the issue for you to decide is whether Patricia\\n Ermini was under the influence of any alcoholic beverage to the\\n extent that her normal faculties were impaired, or the plaintiff had a\\n blood alcohol level of .08 or higher; and whether as a result of the\\n influence of such alcoholic beverage, Patricia Ermini was more than\\n 50 percent at fault for her own harm.\\n\\n If you find that the sheriff has proven this defense by a\\n preponderance of the evidence, then plaintiff’s claim is barred and\\n your verdict is for the sheriff.\\n\\n(emphasis added). Scott objected to the italicized portion of the charge,\\n\\nwhich wasn’t included in the parties’ proposed instructions. The verdict form\\n\\nsimilarly informed the jury that if it found that Scott had proved the alcohol\\n\\ndefense, it didn’t need to complete the remainder of the form.\\n\\n Scott contends that he is entitled to a new trial because the district court\\n\\nimproperly told the jury about the legal effect of any finding under the alcohol\\n\\ndefense—namely, that if proved the defense would bar Ermini from recovering.\\n\\n\\n1\\n Although Scott’s notice of appeal also referenced his renewed motion for judgment as a matter\\nof law, he didn’t address that motion in his briefing, so we won’t consider it here.\\n\\n 7\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 8 of 29\\n\\n\\nThat information, he says, was unnecessary and was likely to evoke sympathy for\\n\\nErmini. In particular, Scott asserts that just as evidence of a party’s liability\\n\\ninsurance is inadmissible at trial, see Fed. R. Evid. 411, information about the legal\\n\\neffect of an alcohol-impairment finding should be verboten since it too has the\\n\\npotential to improperly influence the jurors’ emotions. We disagree.2\\n\\n A\\n\\n Before jumping into the merits, we must determine at the outset whether\\n\\nstate or federal law governs Scott’s argument. We know, as a general matter, that\\n\\nin a diversity case in federal court, “[t]he substance of jury instructions . . . is\\n\\ngoverned by the applicable state law, but questions regarding procedural aspects of\\n\\njury charges are controlled by federal law and federal rules.” Pate v. Seaboard\\n\\nR.R., Inc., 819 F.2d 1074, 1081–82 (11th Cir. 1987) (citations omitted). This case,\\n\\nthough, poses a more specific issue, which turns out to be a question of first\\n\\nimpression for this Court: What law applies—state or federal—when deciding\\n\\nwhether a district court judge properly informed the jury about the legal effect of\\n\\nits finding under state law? More particularly, is informing the jury about the legal\\n\\neffect of a factual finding bound up in the “substance of [the] jury instructions”\\n\\n\\n2\\n “We review jury instructions de novo to determine whether they misstate the law or mislead the\\njury to the prejudice of the objecting party.” Palmer v. Bd. of Regents of the Univ. Sys. of Ga.,\\n208 F.3d 969, 973 (11th Cir. 2000) (citations omitted). So long as the jury “instructions\\naccurately reflect the law,” however, a district court has “wide discretion as to the style and\\nwording employed.” McCormick v. Aderholt, 293 F.3d 1254, 1260 (11th Cir. 2002).\\n\\n 8\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 9 of 29\\n\\n\\nwithin the meaning of Pate, and thus governed by the underlying state law, or is it\\n\\ninstead a “procedural aspect[]” of the charge governed by federal law?\\n\\n We join the Seventh Circuit in holding that this issue is controlled by federal\\n\\nlaw, as it pertains to procedure, not substance. In Beul v. ASSE International, Inc.,\\n\\n233 F.3d 441 (7th Cir. 2000), the Seventh Circuit faced the question whether state\\n\\nor federal law governed a district court’s handling of a question posed to it by a\\n\\njury during its deliberations. The question pertained to the special verdict form,\\n\\nwhich required the jury “to enter separately . . . the amount of damages and the\\n\\npercentage of the plaintiff’s comparative fault and not make the ‘bottom line’\\n\\ncomputation, which involve[d] deducting from the amount of damages that amount\\n\\ntimes the plaintiff’s percentage of comparative fault.” Id. at 449. In particular, the\\n\\njury asked, “What bearing do the negligence factors”—i.e., the fault percentages\\n\\nassigned to the parties—“have on the amounts we may or may not choose to\\n\\naward?” Id. The judge answered, correctly, that they would indeed have an effect:\\n\\n“[T]he comparison factor, if you find both parties negligent, has a significant\\n\\nimpact upon the award that the Court enters.” Id.\\n\\n In concluding that federal law governed the question whether the judge had\\n\\nacted properly, the Seventh Circuit began with the proposition that “[r]ules of\\n\\ngeneral applicability and purely managerial character governing the jury, such as\\n\\nthe form in which a civil jury is instructed, are quintessentially procedural.” Id.\\n\\n\\n 9\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 10 of 29\\n\\n\\nFrom that premise, the court concluded that a district judge’s decision to inform\\n\\nthe jury about the legal effect of its findings is an issue of procedure: “We think it\\n\\nfollows that whether the federal court should try to keep the jury in the dark about\\n\\nthe legal effect of the jury’s answers to the questions posed to it by the special\\n\\nverdict is also a question of federal law.” Id. The court wrote that its classification\\n\\nof the issue as procedural could result either from “an interpretation of [Federal]\\n\\nRule [of Civil Procedure] 49(a),” which governs special verdicts, or from the\\n\\napplication of “a federal common law of special verdicts to supplement the rule.”\\n\\nId. (The same, we think, could be said with respect to Rule 51, which governs jury\\n\\ninstructions. See Fed. R. Civ. P. 51.)\\n\\n We agree with the Seventh Circuit’s conclusion that federal law controls.\\n\\nThe decision whether to inform the jury about the legal effect of its findings—or,\\n\\nwhether instead, in the Seventh Circuit’s words, to “keep the jury in the dark”—\\n\\nhas nothing to do with the substance of the applicable legal rule or the merits of the\\n\\nissues before the court. Instead, it has everything to do with the fair and efficient\\n\\nmanagement of the trial. To be sure, a party may take issue with the fairness or\\n\\nefficiency of the district court’s decision; but it must do so by reference to federal\\n\\nlaw, not state.\\n\\n\\n\\n\\n 10\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 11 of 29\\n\\n\\n B\\n\\n So then, does federal law preclude a district court judge from informing\\n\\njurors about the legal effects of their factual findings? We hold that it doesn’t.\\n\\n It’s true, of course, that “[a] judge has no general duty to inform the jury of\\n\\nthe legal consequences of its verdict.” Beul, 233 F.3d at 450 (citations omitted).\\n\\nAnd it may even be the case that “in some circumstances the giving of such\\n\\ninformation might interfere with the jury’s appraisal of the facts.” Id. But there is\\n\\nmost assuredly “no rule against giving the information.” Id. And indeed, we agree\\n\\nwith the Seventh Circuit that it is “difficult to conceive” of a scenario in which\\n\\nmerely informing jurors of the legal consequences of their findings—i.e., telling\\n\\nthem the whole truth—would constitute reversible error. Id. Rule 49 expressly\\n\\nallows judges to use general verdict forms with special interrogatories, which\\n\\n“reveal to the jury the legal consequences of its specific findings,” and “there is no\\n\\npurpose in forbidding [judges] to do the same thing with a special verdict.” Id.\\n\\nAnd we can think of no reason why a different rule should apply to jury\\n\\ninstructions. We hold, therefore, that a district court may inform the jury about the\\n\\nlegal effect of its finding so long as it does so accurately. And here no one\\n\\ncontends—nor could they—that the court’s instructions were inaccurate.\\n\\n Scott leans heavily on Harrison v. Gregory, and understandably so, as the\\n\\ncourt there granted a new trial, in part because the jury was told that if it concluded\\n\\n\\n 11\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 12 of 29\\n\\n\\nthe defendant had proved Florida’s alcohol defense, the plaintiff couldn’t recover.\\n\\n221 So. 3d 1273, 1277–78 (Fla. Dist. Ct. App. 2017). Harrison, though, is doubly\\n\\ndistinguishable. First, it arose under state law, and as we’ve just explained, federal\\n\\nlaw governs whether and under what circumstances a federal district court judge\\n\\nmay inform the jury about the legal effect of its findings. Second, Harrison is\\n\\ndifferent in an important respect. The problem there wasn’t so much that the jury\\n\\nfound out about the legal effect of its finding regarding Florida’s alcohol defense,\\n\\nbut rather that the plaintiff’s lawyer had, in closing, attempted to “inflame the\\n\\nminds and passions of the jurors” by harping on the unfairness of the statutory\\n\\ndefense: “By the way,” he said, “50 percent or more at fault, there’s no recovery.”\\n\\nId. at 1277. 3 The situation here, where the district court impassively—and\\n\\naccurately—instructed the jury concerning the legal effect of its alcohol-defense\\n\\nfinding, strikes us as entirely different. Walther v. Omaha Public Power District,\\n\\n412 F.2d 1164 (8th Cir. 1969), on which Scott also relies, is also off-point. There,\\n\\nthe Eighth Circuit merely concluded that the legal effect of a jury’s finding needn’t\\n\\nnecessarily be included in a jury instruction, not that it can’t be included. See id. at\\n\\n1169–70.\\n\\n\\n3\\n In this connection, it is worth noting that Scott’s own lawyer made a similar comment during\\nhis closing argument here: “[B]y the way, if [Ermini’s] own intoxication impairment factored\\ninto this incident, precipitated the incident, caused the incident, then this claim is barred.” He\\nwent on to tell the jurors that if they found in Scott’s favor with regard to the alcohol defense,\\n“that ends this case.”\\n\\n 12\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 13 of 29\\n\\n\\n To summarize: Federal law controls this issue, and federal law doesn’t\\n\\npreclude district court judges from accurately informing jurors of the effects of\\n\\ntheir findings—in either their instructions or their verdict forms. Accordingly, it\\n\\nwasn’t improper for the judge here to provide an accurate statement of law\\n\\nexplaining the legal effect of the jury’s finding under Florida’s alcohol defense.\\n\\n III\\n\\n Scott next asserts that he is entitled to a new trial on the ground that Ermini\\n\\neffectively used her negligent-wellness-check claim as a Trojan Horse to reassert\\n\\nher claims about the deputies’ use of force, which the district court had dismissed\\n\\npretrial. Although his position is difficult to discern, Scott seems to be making\\n\\neither (or both) of two different arguments. First, he contends that Ermini’s\\n\\nintroduction of evidence about the deputies’ use of force converted her otherwise\\n\\ncognizable (even if he would say losing) negligent-wellness-check claim into an\\n\\ninvalid “negligent-use-of-force” claim that Florida law doesn’t recognize. Second,\\n\\nand separately, because the district court rejected Ermini’s claims surrounding the\\n\\nofficers’ use of force at summary judgment, Scott asserts that her claim is\\n\\nprecluded. We disagree on both counts.4\\n\\n\\n\\n4\\n Our “review of a district court’s denial of a motion for new trial is very limited.” Blu-J, Inc. v.\\nKemper C.P.A. Grp., 916 F.2d 637, 643 (11th Cir. 1990). “Absent an abuse of discretion, the\\ndistrict court’s disposition of a motion for a new trial will not be disturbed on appeal, especially\\nwhen that disposition was to deny the motion.” Id.\\n\\n 13\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 14 of 29\\n\\n\\n A\\n\\n We’ll start with Scott’s contention that Ermini used the guise of a negligent-\\n\\nwellness-check claim to try a non-cognizable negligent-use-of-force claim. And\\n\\nwe’ll begin at the beginning, with Ermini’s complaint. Ermini’s complaint\\n\\nexpressly alleged that Scott’s deputies negligently performed a wellness check—\\n\\nnot that they engaged in a negligent use of force. (To be sure, Ermini asserted that\\n\\nthe deputies used force excessively, in violation of federal constitutional standards,\\n\\nbut not that they used force negligently, in violation of state law.) In particular,\\n\\nErmini alleged that “S[cott], acting through his deputies, owed a special duty of\\n\\ncare to [her] because of the manner in which his deputies responded to a 911 call\\n\\nfor a wellness check,” and that the deputies later “fail[ed] to exercise reasonable\\n\\ncare in conducting the wellness check.” And the district court certainly seemed to\\n\\nappreciate the distinction: While the court granted summary judgment in the\\n\\ndeputies’ favor on Ermini’s excessive-force claims, it denied them summary\\n\\njudgment on the negligent-wellness-check claim, finding that “triable issues of fact\\n\\nexist[ed] as to whether the deputies exercised reasonable care in carrying out the\\n\\nwelfare check, which increased the risk of harm to [Ermini], and whether\\n\\n[Ermini’s] actions were a reasonably foreseeable consequence of the negligent acts\\n\\nor omissions of the deputies.”\\n\\n\\n\\n\\n 14\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 15 of 29\\n\\n\\n Even so, Scott insists that as matters unfolded at trial, Ermini’s negligent-\\n\\nwellness-check claim devolved into a non-cognizable—and thus forbidden—\\n\\nnegligent-use-of-force claim. We don’t think so. Ermini didn’t invent and litigate\\n\\na new cause of action; rather, there is simply an inevitable overlap between the\\n\\nfacts underlying her negligent-wellness-check claim and those surrounding the\\n\\ndeputies’ use of force. And although Florida doesn’t recognize claims for\\n\\nnegligent use of force, it does recognize the commonsense proposition that\\n\\n“distinct act[s] of negligence” can occur in conjunction with alleged excessive-\\n\\nforce incidents. City of Miami v. Sanders, 672 So. 2d 46, 48 (Fla. Dist. Ct. App.\\n\\n1996). Just so here—the wellness check involved distinct acts of alleged\\n\\nnegligence during which an allegedly excessive use of force occurred.\\n\\n To bolster his claim, Scott asserts that “[m]uch of [Ermini’s] counsel’s\\n\\nquestions and argument” focused on the officers’ use of force, but he musters only\\n\\ntwo examples from the trial record: (1) Ermini’s lawyer suggesting that she never\\n\\npointed her gun at the deputies; and (2) her lawyer referencing the deputies’ failure\\n\\nto issue a warning prior to opening fire. Two instances do not “much” of Ermini’s\\n\\nargument make. Moreover, the facts surrounding the use of force are inextricably\\n\\nintertwined with those surrounding the wellness check—it’s all one seamless story.\\n\\nAccordingly, it seems to us essentially inevitable that Ermini’s lawyer properly\\n\\nwould elicit testimony pertaining to the use of force in the course of trying the\\n\\n\\n 15\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 16 of 29\\n\\n\\nnegligent-wellness-check claim. Indeed, excluding all information about the\\n\\nofficers’ force would have made it nearly impossible for the jury to do its job.\\n\\nCould jurors have even possibly determined Ermini’s damages, for instance, if they\\n\\nhad been precluded from hearing any information about the specific conduct that\\n\\ncaused her injury?\\n\\n In any event, the fact that Ermini’s lawyer mentioned a few details about the\\n\\nforce used by the deputies doesn’t negate or invalidate the trial’s overarching focus\\n\\non their negligence in performing the wellness check, nor does it convert Ermini’s\\n\\nnegligent-wellness-check claim into a nonexistent negligent-use-of-force claim.\\n\\nThe complaint, the jury instructions, and the verdict form all properly focused on\\n\\nthe vicarious-liability claim against Scott and his statutory defenses. And when\\n\\nErmini’s lawyer examined her witnesses—particularly the officers—she\\n\\nquestioned them extensively about their conduct in connection with the wellness\\n\\ncheck even before any shots were fired. She asked the deputies, for instance, about\\n\\ntheir dark uniforms, whether the lights outside Ermini’s home were on, whether the\\n\\nhouse’s interior was dark and if (and how) they used their flashlights, whether their\\n\\npatrol cars were visible from the road, whether they checked the perimeter of the\\n\\nhome before entering, whether they used Ermini’s name when speaking to her, and\\n\\nwhat, if any, wellness-check-related training or experience they had received prior\\n\\nto the incident. None of those questions had anything to do with the officers’ use\\n\\n\\n 16\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 17 of 29\\n\\n\\nof force. The fact that Ermini’s lawyer also occasionally touched on force-related\\n\\ntopics doesn’t convert the cause of action. The circumstances surrounding the\\n\\nwellness check and the use of force are bound up in the same unfortunate\\n\\nincident—it’s difficult, if not impossible, to tell the former story without\\n\\noccasionally verging into the latter.\\n\\n B\\n\\n Scott separately contends—albeit obliquely—that Ermini’s introduction of\\n\\nevidence pertaining to the deputies’ use of force should have been barred by some\\n\\nform of preclusion doctrine. Again, we disagree.\\n\\n To the extent that any such doctrine is in play here, we think it is “direct\\n\\nestoppel,” which is a variety of issue preclusion. DuChateau v. Camp, Dresser &\\n\\nMcKee, Inc., 713 F.3d 1298, 1301 (11th Cir. 2013). “Direct estoppel, as opposed\\n\\nto collateral estoppel, governs the preclusive effect of a litigated issue in a separate\\n\\nproceeding within a single suit.” Cotton v. Heyman, 63 F.3d 1115, 1118 n.1 (D.C.\\n\\nCir. 1995); see also DuChateau, 713 F.3d at 1301–03. To the extent Scott means\\n\\nto argue that Ermini was barred from “relitigating” at trial force-related facts that\\n\\nhad already been adjudicated against her at summary judgment—in particular,\\n\\nwhether Ermini pointed her gun at the deputies and whether they warned her\\n\\nbefore shooting—his argument fails. A partial summary judgment on some of a\\n\\nplaintiff’s claims cannot directly estop other claims that proceed to trial.\\n\\n\\n 17\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 18 of 29\\n\\n\\n We have held that a jury verdict on one claim can directly estop another\\n\\nclaim in the same suit. DuChateau, 713 F.3d at 1301–02 (holding that a jury\\n\\nverdict on a claim of employment retaliation directly estopped the plaintiff’s\\n\\nappeal of the district court’s rejection of her claim of pregnancy discrimination\\n\\nbecause both claims required proof of adverse employment action). But partial\\n\\nsummary judgment is materially different from a jury verdict. Unlike a jury\\n\\nverdict, a partial summary judgment is not a “final decision” under 28 U.S.C.\\n\\n§ 1291. State Treasurer of Michigan v. Barry, 168 F.3d 8, 11 (11th Cir. 1999).5\\n\\nAccordingly, the district court’s interlocutory order rejecting some of Ermini’s\\n\\nclaims at summary judgment does not preclude her negligent-wellness-check\\n\\nclaim. 6\\n\\n\\n\\n\\n5\\n The only way for Ermini to obtain appellate review of the district court’s partial summary\\njudgment against her would have been to seek discretionary interlocutory review, 28 U.S.C.\\n§ 1292(b), or extraordinary relief such as a writ of mandamus. And a failure to seek permissive\\ninterlocutory review does not transform an otherwise nonfinal order into a final decision entitled\\nto preclusive effect. 18 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal\\nPractice and Procedure § 4418, at 524 (3d ed. 2016) (“[F]ailure to seize opportunities for\\navowedly interlocutory review should not transform a potentially reviewable order into issue\\npreclusion.”).\\n6\\n Moreover, and in any event, both of the issues on which Scott seems to predicate his estoppel-\\nbased argument—whether Ermini pointed her gun at the deputies and whether they warned her\\nbefore shooting—were assumed in Ermini’s favor at summary judgment, not against her; the\\ndistrict court accepted for the sake of argument that Ermini didn’t point her gun at the deputies\\nand that they didn’t warn her before opening fire, but granted summary judgment on her\\nexcessive-force claim anyway.\\n\\n 18\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 19 of 29\\n\\n\\n IV\\n\\n Next, the “golden-rule.” Scott objects to the following statement that\\n\\nErmini’s lawyer made at closing: “The fact of the matter is that . . . actually, the\\n\\nevidence supports Ms. Ermini’s version, which is a logical thing. Can you imagine\\n\\nif someone was in your house that you wouldn’t try to figure out who is that[?]”\\n\\n(emphasis added). Scott asserts that this statement violates the prohibition on\\n\\n“golden-rule” arguments. We disagree. 7\\n\\n A\\n\\n A “golden-rule” argument invites jurors to “put themselves in the shoes of\\n\\nthe plaintiff and do unto him as they would have him do unto them under similar\\n\\ncircumstances.” Ivy v. Sec. Barge Lines, Inc., 585 F.2d 732, 741 (5th Cir. 1978).\\n\\nThe risk is that such a statement asks jurors to “decide the case on the basis of\\n\\nsympathy rather than from an objective review of the evidence.” Dempsey v. Mac\\n\\nTowing, Inc., 876 F.2d 1538, 1540 n.1 (11th Cir. 1989). An unremedied golden-\\n\\nrule argument will ordinarily result in reversal. Id.\\n\\n A golden-rule objection typically arises when a lawyer asks jurors to place\\n\\nthemselves in the plaintiff’s position with respect to the calculation of damages.\\n\\nSee, e.g., Ivy, 585 F.2d at 741 & n.10. For example, asking the jury, “If you were\\n\\n\\n7\\n We review a district court’s ruling regarding allegedly improper statements by counsel for an\\nabuse of discretion. Allstate Ins. Co. v. James, 845 F.2d 315, 318 (11th Cir. 1988) (citation\\nomitted).\\n\\n 19\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 20 of 29\\n\\n\\nin the plaintiff’s shoes, how much do you think you would deserve?” would be a\\n\\nclear-cut violation. “The rationale for prohibiting such an argument is that the\\n\\njury’s sympathy will be unfairly aroused, resulting in a disproportionate award of\\n\\ndamages.” Burrage v. Harrell, 537 F.2d 837, 839 (5th Cir. 1976); see also Har-\\n\\nPen Truck Lines, Inc. v. Mills, 378 F.2d 705, 714–15 (5th Cir. 1967). The question\\n\\nhere is whether Ermini’s lawyer’s statement—which pertained not to the\\n\\nappropriate measure of damages but rather to Scott’s liability for the deputies’\\n\\nactions—violated the prohibition on golden-rule arguments as explicated in our\\n\\ncase law. We conclude that it didn’t.\\n\\n B\\n\\n Although many courts treat golden-rule arguments as universally improper, 8\\n\\nwe have historically permitted certain golden-rule-ish statements in the liability\\n\\ncontext. Most notably for present purposes, in McNely v. Ocala Star-Banner\\n\\nCorp., we held that defense counsel didn’t violate the prohibition on golden-rule\\n\\narguments when he “invit[ed] the jury to put itself in the defendants’ position when\\n\\n\\n\\n8\\n See, e.g., Caudle v. District of Columbia, 707 F.3d 354, 360 (D.C. Cir. 2013) (holding that “[i]t\\nis no more appropriate for a jury to decide a defendant’s liability . . . based on an improper\\nconsideration than to use the same consideration to determine damages”); Mich. First Credit\\nUnion v. Cumis Ins Soc’y, Inc., 641 F.3d 240, 249 (6th Cir. 2011); Ins. Co. of N. Am., Inc. v. U.S.\\nGypsum Co., 870 F.2d 148, 154 (4th Cir. 1989); Edwards v. City of Philadelphia, 860 F.2d 568,\\n574–75 (3d Cir. 1988); Joan W. v. City of Chicago, 771 F.2d 1020, 1022 (7th Cir. 1985) (stating\\nthat “[t]here is no reason for . . . a distinction [between different types of golden rule statements]\\nbecause the jury’s departure from its neutral role is equally inappropriate regardless of the issue\\nat stake”).\\n\\n 20\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 21 of 29\\n\\n\\nconsidering [plaintiff’s] alleged work place misconduct and evaluating whether he\\n\\nwas terminated because of his disability.” 99 F.3d 1068, 1071 n.3 (11th Cir.\\n\\n1996). That statement, we held, “was not in any way directed to the question of\\n\\ndamages; rather it related only to the reasonableness of appellee’s actions”—an\\n\\nissue that was squarely, and properly, before the jury. Id. (emphasis added) (citing\\n\\nBurrage, 537 F.2d at 839).\\n\\n Somewhat farther afield—but in the same vein—we have permitted liability-\\n\\nrelated golden-rule statements in criminal cases. In Reese v. Secretary, Florida\\n\\nDepartment of Corrections, for instance, we held that a prosecutor’s comment that\\n\\na victim experienced “every woman’s wors[t] nightmare,” as well as statements\\n\\nurging the jury to think about “what was going on in [the victim’s] mind,” weren’t\\n\\nimproper golden-rule arguments because the government had to show that the\\n\\ncrime was “designed to inflict a high degree of pain with utter indifference to . . .\\n\\nthe suffering of others” in order to prove an aggravating factor. 675 F.3d 1277,\\n\\n1292 (11th Cir. 2012) (first alteration in original) (quoting citation omitted). So\\n\\ntoo, in Davis v. Kemp, we deemed the following statement permissible in a death-\\n\\npenalty case, because the jury could properly consider the defendant’s “future\\n\\ndangerousness”: “Ask yourselves this question, how would you feel living in this\\n\\ncommunity if you looked out of your window one night and saw [the defendant]\\n\\nwalking down the street coming up toward your house. If that wouldn’t put a\\n\\n\\n 21\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 22 of 29\\n\\n\\nfeeling of cold terror in your heart, what would?” 829 F.2d 1522, 1528–29 (11th\\n\\nCir. 1987).9\\n\\n The common tie that binds the liability-related golden-rule-ish statements\\n\\nthat we have deemed permissible? Their connection to an element or factor\\n\\ngenuinely at issue in the case, or their focus on either a party’s behavior or\\n\\nperception of an incident. Here, Ermini’s lawyer’s argument went directly to the\\n\\nreasonableness of Ermini’s response to the deputies’ actions during the wellness\\n\\ncheck, which bears directly on the foreseeability of her actions—both issues that\\n\\njurors would necessarily have had to grapple with in deciding Ermini’s negligent-\\n\\nwellness-check claim. The statement seems to us essentially indistinguishable\\n\\nfrom the reasonableness-related statement that we allowed in McNely.\\n\\n Admittedly, Ermini’s lawyer could have chosen her words more carefully—\\n\\nthere’s plenty of case law warning attorneys to steer clear of potentially\\n\\ninflammatory closing arguments, see, e.g., United States v. Kopituk, 690 F.2d\\n\\n1289, 1342–43 (11th Cir. 1982)—but, her lone statement in closing didn’t run\\n\\nafoul of the prohibition on golden-rule statements as we have understood and\\n\\napplied it.\\n\\n\\n\\n9\\n See also, e.g., Kennedy v. Dugger, 933 F.2d 905, 913 (11th Cir. 1991) (permitting the following\\ncomment about a first-degree-murder victim’s experience: “Can you imagine, in your own\\nliving room not bothering a soul on a Saturday afternoon? . . . [The defendant] walked . . . down\\nto your own house, and, a total stranger, because you got in his way, destroys you[?]”).\\n\\n 22\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 23 of 29\\n\\n\\n What’s more, even if the statement had crossed the line, “[f]or reversible\\n\\nerror to be found in a closing argument, the challenged argument must be ‘plainly\\n\\nunwarranted and clearly injurious.’” Goldsmith v. Bagby Elevator Co., 513 F.3d\\n\\n1261, 1282 (11th Cir. 2008) (quoting Peterson v. Willie, 81 F.3d 1033, 1036 (11th\\n\\nCir. 1996)). There is no evidence to suggest that Ermini’s lawyer’s statement was\\n\\n“plainly unwarranted”—again, it seems at the very least to fall within the zone of\\n\\nstatements that we have allowed—let alone “clearly injurious” to Scott’s case. Id.\\n\\nMoreover, when evaluating the prejudice resulting from an attorney’s comments,\\n\\nwe examine comments in the context of the entire trial and any curative\\n\\ninstruction, United States v. Hernandez, 145 F.3d 1433, 1438–39 (11th Cir. 1998),\\n\\nand here the district court judge explicitly instructed the jurors that they “must not\\n\\nbe influenced in any way by either sympathy or prejudice for or against either\\n\\nparty,” and that they “must follow the law . . . even if [they] do not agree with it.”\\n\\n V\\n\\n Finally, Scott challenges the admission of Lisenbee’s and Hamer’s\\n\\ntestimony about their post-event terminations from the Sheriff’s Office—which all\\n\\nagree had nothing to do with the incident involving Ermini but which, Scott says,\\n\\ntended to paint the deputies in a bad light. The district court allowed limited\\n\\nquestioning about the timing of and general reasons for Lisenbee’s and Hamer’s\\n\\nfirings, but it excluded any related documents containing further details. In\\n\\n\\n 23\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 24 of 29\\n\\n\\nparticular, when examining Lisenbee, Ermini’s lawyer briefly asked whether he\\n\\nhad been dismissed from the Sheriff’s Office; questioning revealed only that\\n\\nLisenbee had been a probationary officer at the time of the Ermini incident and that\\n\\nhe hadn’t “me[t his] probationary requirements.” Ermini’s lawyer also confirmed\\n\\nthat Hamer had been fired for “[c]onduct unbecoming” after he “violate[d] a policy\\n\\nand fail[ed] to disclose it.” That was the extent of the evidence—no additional\\n\\ndetails were elicited, no explanatory records or documentation were introduced,\\n\\nand the remainder of the deputies’ examinations focused on the incident at issue.10\\n\\n Because the issue at trial was whether Scott was vicariously liable for the\\n\\ndeputies’ own failure to use reasonable care in conducting the wellness check,\\n\\nScott contends that allowing Ermini’s lawyer to question Lisenbee and Hamer\\n\\nabout their terminations—even to a limited extent—violated Federal Rules of\\n\\nEvidence 404(b) and 403. We discuss the application of those rules in turn.11\\n\\n\\n\\n\\n10\\n As a result of the judge’s exclusion of any additional evidence surrounding the deputies’\\nterminations, jurors didn’t learn (1) that Lisenbee’s failure to meet probationary requirements\\nwas partially related to his “inability to control scenes or suspects through verbal commands”\\nand that he “had started remedial training two weeks before this incident”; or (2) that Hamer was\\ndismissed after “an unrelated incident where inappropriate materials were found on his work\\ncomputer.”\\n11\\n We review a district court’s evidentiary rulings for abuse of discretion. United States v.\\nBrown, 665 F.3d 1239, 1247 (11th Cir. 2011).\\n\\n 24\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 25 of 29\\n\\n\\n A\\n\\n In relevant part, Federal Rule of Evidence 404(b) states that “[e]vidence of a\\n\\ncrime, wrong, or other act is not admissible to prove a person’s character in order\\n\\nto show that on a particular occasion the person acted in accordance with the\\n\\ncharacter.” Fed. R. Evid. 404(b)(1). The rule’s language is broad—it applies to\\n\\nany “person[,]” not just to plaintiffs, defendants, or parties. Even so, we have held\\n\\nin both the civil and criminal contexts that Rule 404(b) does not—at least of its\\n\\nown force—apply when, as here, the challenged other-bad-acts evidence implicates\\n\\na witness or another non-party to the litigation. See United States v. Morano, 697\\n\\nF.2d 923, 926 (11th Cir. 1983) (concluding, in a criminal case, that “Rule 404(b)\\n\\ndoes not control” in instances where the evidence in question does not relate to acts\\n\\nof the defendant, but rather to “an extraneous offense committed by someone other\\n\\nthan the defendant”); Glados, Inc. v. Reliance Ins. Co., 888 F.2d 1309, 1311–12\\n\\n(11th Cir. 1987) (citing and applying Morano in the context of a civil case).\\n\\n As we did in United States v. Sellers, we once again “question Morano’s\\n\\nreasoning,” which seems to us to flatly contradict Rule 404(b)’s clear text:\\n\\n The plain language of Rule 404(b) refers to “persons,” not\\n “defendants,” and Rule 404(a) carves out specific exceptions relating\\n to the “accused,” “victim[s],” and “witness[es].” Where, as\\n in Morano and this case, the non-defendant’s “extraneous” act, if\\n proved, directly supports the guilt of the defendant as to the crime\\n charged, that “extraneous” act should not, it seems, be subject to proof\\n through the improper character-evidence route condemned by Rule\\n\\n\\n 25\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 26 of 29\\n\\n\\n 404. Indeed, it is difficult to see how the non-defendant’s act could be\\n described as “extraneous” in such circumstances.\\n\\n906 F.2d 597, 604 n.11 (1990). We recognize, though, as we did in Sellers, that\\n\\nwe are “bound by [Morano] as precedent”—especially as extended to the civil-\\n\\nlitigation context in Glados. Id. And finally we note—more happily, and again as\\n\\nwe did in Sellers—that Rule 404(b)’s non-applicability probably doesn’t make\\n\\nmuch of a difference, because “Morano held that the factors articulated in Rule\\n\\n404 ‘should be considered in weighing the balance between the relevancy of this\\n\\nevidence and its prejudice under Rule 403.’” Sellers, 906 F.2d at 604 n.11\\n\\n(quoting Morano, 697 F.2d at 926). “The functional analysis is thus largely the\\n\\nsame”—it just takes place under the auspices of Rule 403 rather than Rule 404(b).\\n\\nId.\\n\\n So we conclude—in accord with existing precedent, but dubitante—that\\n\\nRule 404(b) doesn’t apply here, and we turn to consider whether the admission of\\n\\nevidence pertaining to Lisenbee’s and Hamer’s terminations violated Rule 403 and,\\n\\nif so, whether the error in admitting it was harmless.\\n\\n B\\n\\n Rule 403 states that a court “may exclude relevant evidence if its probative\\n\\nvalue is substantially outweighed by a danger of . . . unfair prejudice, confusing the\\n\\nissues, misleading the jury, undue delay, wasting time, or needlessly presenting\\n\\ncumulative evidence.” Fed. R. Evid. 403. This Court affords district court judges\\n 26\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 27 of 29\\n\\n\\n“the broadest discretion in determining whether evidence should be excluded under\\n\\nRule 403.” United States v. Costa, 947 F.2d 919, 924 (11th Cir. 1991) (quoting\\n\\ncitation omitted).\\n\\n Taking Rule 404(b) considerations into account—as Morano and Sellers\\n\\nrequire—we think the challenged testimony here could easily be understood to\\n\\nconvey precisely the kind of propensity-based inference that the Rules of Evidence\\n\\naim to prevent—namely, that Lisenbee and Hamer were bad cops (why else the\\n\\nfirings?) with a penchant to act badly, just as Ermini alleges they did the night of\\n\\nthe wellness check. Moreover, the circumstances in this case are unique in that\\n\\nwhile Scott is the defendant, he is only vicariously so—practically speaking, the\\n\\ndeputies’ actions are on trial. Accordingly, it seems to us that “the policies\\n\\nunderlying Rule 404(b)”—which again, we are instructed to fold into our Rule 403\\n\\nanalysis— are squarely applicable. Morano, 697 F.2d at 926. All things\\n\\nconsidered, we think it clear that the prejudicial value of this evidence could be\\n\\nthought to substantially outweigh its probative value.\\n\\n That, though, isn’t the end of the inquiry. Even if a district court abuses its\\n\\ndiscretion by admitting prejudicial character evidence, evidentiary error “must\\n\\n[still] rise above the threshold of harmless error” to warrant reversal. Perry v.\\n\\nState Farm Fire & Cas. Co., 734 F.2d 1441, 1446 (11th Cir. 1984) (quoting\\n\\nWallace v. Ener, 521 F.2d 215, 222 (5th Cir. 1975)). The burden of proving that\\n\\n\\n 27\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 28 of 29\\n\\n\\nan error was not harmless rests with the party asserting it, who must establish that\\n\\nthe error “affect[ed his] . . . substantial rights.” Id. “If . . . the error did not\\n\\ninfluence the jury, or had but very slight effect, the verdict and the judgment\\n\\nshould stand . . . .” Kotteakos v. United States, 328 U.S. 750, 764 (1946).\\n\\n Although we think the district court may well have abused its discretion in\\n\\nadmitting Lisenbee’s and Hamer’s testimony, we conclude that any error was\\n\\nharmless, for several reasons. First, Ermini’s lawyer’s questioning of the witnesses\\n\\nwas brief and was largely limited to generalities about their dismissals; the district\\n\\ncourt properly excluded explanatory records and documents, which would have\\n\\nintroduced additional details. Second, Ermini’s lawyer asked all of her witnesses\\n\\nabout their employment history and current job status, save for those who appeared\\n\\nin uniform and whose status was therefore obvious—so there wasn’t any undue\\n\\nfocus on Lisenbee and Hamer. Third, Lisenbee and Hamer clarified on cross-\\n\\nexamination that they were not terminated—or even disciplined or criticized—as a\\n\\nresult of anything they did (or didn’t do) in connection with the Ermini incident,\\n\\nand, further, that the Sheriff’s Office never even concluded that they “violated\\n\\npolicy” during the wellness check.\\n\\n Because we conclude that Scott hasn’t shown that the deputies’ testimony\\n\\nabout their terminations affected his substantial rights, we find no reversible error.\\n\\n\\n\\n\\n 28\\n\\f Case: 18-11220 Date Filed: 09/10/2019 Page: 29 of 29\\n\\n\\n VI\\n\\n For the foregoing reasons, we hold (1) that it wasn’t improper for the district\\n\\ncourt to inform the jury about the legal effect of its finding under Florida’s alcohol\\n\\ndefense; (2) that Ermini didn’t present a nonexistent negligent-use-of-force claim\\n\\nand that her negligent-wellness-check claim wasn’t precluded; (3) that Ermini’s\\n\\nlawyer didn’t make a forbidden golden-rule argument; and (4) that any error that\\n\\nthe district court committed in admitting testimony about Lisenbee’s and Hamer’s\\n\\ndismissals was harmless.12 Accordingly, we affirm the jury’s verdict and the\\n\\ndistrict court’s judgment, as well as that court’s denial of Scott’s motion for new\\n\\ntrial.\\n\\nAFFIRMED.\\n\\n\\n\\n\\n12\\n Scott also contends that all of these errors, taken together, resulted in cumulative error\\nsufficient to merit a new trial. Because we find no errors, Scott’s cumulative-error argument\\nnecessarily fails.\\n\\n\\n\\n 29\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4491,"cells":{"id":{"kind":"number","value":4659714,"string":"4,659,714"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Alphonso I. Waters, Jr."},"decision_date":{"kind":"string","value":"2019-09-10"},"docket_number":{"kind":"string","value":"18-11333"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before ED CARNES, Chief Judge, JULIE CARNES, and CLEVENGER,∗ Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"ED CARNES, Chief Judge\", \"type\": \"010combined\", \"text\": \"Case: 18-11333 Date Filed: 09/10/2019 Page: 1 of 32\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-11333\\n ________________________\\n\\n D.C. Docket No. 1:16-cr-00407-TCB-JSA-1\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellee,\\n\\n versus\\n\\nALPHONSO I. WATERS, JR.,\\n\\n Defendant-Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Georgia\\n ________________________\\n\\n (September 10, 2019)\\n\\nBefore ED CARNES, Chief Judge, JULIE CARNES, and CLEVENGER,∗ Circuit\\nJudges.\\n\\nED CARNES, Chief Judge:\\n\\n ∗ Honorable Raymond C. Clevenger, III, United States Circuit Judge for the Federal\\nCircuit, sitting by designation.\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 2 of 32\\n\\n\\n In this wire fraud case, we are once again confronted with the question of\\n\\nwhen a lie is just a lie and when it is a federal crime. “It is conceded that there is a\\n\\nclass of lies, voluntary, aimless, yet weak and wicked lies,” Green’s Adm’r v.\\n\\nBryant, 2 Ga. 66, 68 (1847), that our law does not forbid. And the federal wire\\n\\nfraud statute “forbids only schemes to defraud, not schemes to do other wicked\\n\\nthings, e.g., schemes to lie, trick, or otherwise deceive.” United States v.\\n\\nTakhalov, 827 F.3d 1307, 1310 (11th Cir.), as revised (Oct. 3, 2016), opinion\\n\\nmodified on denial of reh’g, 838 F.3d 1168 (11th Cir. 2016). “The difference,” we\\n\\nhave explained, “is that deceiving does not always involve harming another\\n\\nperson; defrauding does.” Id.\\n\\n Alphonso Waters, Jr., relies on that distinction to argue that the lies he told\\n\\nin the process of obtaining a $6 million loan did not amount to fraud. He sought\\n\\nthat loan in 2013 from a private lender who discovered that Waters had several\\n\\nyears’ worth of federal tax liens outstanding. To calm the lender’s concerns,\\n\\nWaters sent it a letter that appeared to be from the IRS approving him for a\\n\\npayment plan to pay off the tax liens. Then he sent the lender another letter stating\\n\\nthat, as far as he knew, the first letter really was from the IRS. Both of those letters\\n\\nwere lies –– lock, stock, and barrel; stem to stern, top to bottom. But, Waters\\n\\nargues, they weren’t statutorily damned lies; they weren’t lies constituting wire\\n\\nfraud because they didn’t affect the bargain between the parties. He reasons that\\n\\n\\n\\n 2\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 3 of 32\\n\\n\\nany lie he told about his creditworthiness was harmless because the collateral for\\n\\nthe loan was worth $8.4 million, which is more than the total amount of the loan.\\n\\nWe are not convinced.\\n\\n I. BACKGROUND\\n\\n A. The Scheme\\n\\n Waters was the CEO of Family Practice of Atlanta, a medical practice he\\n\\nowned and operated with his wife, Dr. Sondi Moore-Waters, a physician. He ran\\n\\nthe business side of things, she ran the medical side. [Id.] Sometime around 2011\\n\\nthey decided they needed a bigger building for the growing practice. They formed\\n\\nSondial Properties, LLC (a portmanteau of the couple’s names, Sondi and Al), and\\n\\nthe company borrowed about $4 million in the form of two different construction\\n\\nloans from JP Morgan Chase Bank. Those loans matured on October 18, 2013,\\n\\nand Sondial immediately defaulted on them because of delays and cost overruns\\n\\nwith the construction.\\n\\n Waters sought the help of a commercial mortgage broker in finding a $6\\n\\nmillion transitional loan so he could pay back the $4 million to Chase and also\\n\\nfinish construction. Waters’ broker, Tony Baldwin, contacted Chesterfield Faring,\\n\\nLtd., a real estate services and investment firm that specialized in finding funding\\n\\nfor lapsing or lapsed loans. Chesterfield’s CEO was a man named Larry Selevan.\\n\\nSelevan and his company helped borrowers find loans by researching the financial\\n\\n\\n\\n 3\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 4 of 32\\n\\n\\nviability of a proposed project and packaging that information so potential lenders\\n\\ncould easily decide whether to provide financing.\\n\\n Selevan proposed the loan project to Colony Capital, LLC. Colony was a\\n\\nprivate equity firm and real estate investment trust that provided financing for\\n\\ncommercial realty projects deemed to exceed a bank’s normal risk profile.\\n\\nMichael Sanchez, the senior vice president of Colony, oversaw Sondial’s loan\\n\\napplication. He understood that the loan “had to be closed very quickly” so Waters\\n\\ncould pay off Chase and meet construction deadlines. On October 25, 2013,\\n\\nSanchez sent Chesterfield a term sheet outlining the terms and conditions that\\n\\nColony proposed for the loan. Under the proposal Colony would lend Sondial $6\\n\\nmillion and, in exchange, it would receive a first priority mortgage on the new\\n\\nbuilding and rights to all leases and rents there, as well as about a 7% interest rate\\n\\nfor the two-year initial term. Al Waters signed the term sheet on behalf of Sondial.\\n\\n With the terms of the loan all set, the due diligence phase began. Waters and\\n\\nMoore-Waters filled out a personal financial statement for Colony, listing their\\n\\nassets, income, liabilities, and things of that nature. To say the least, they weren’t\\n\\nas forthcoming as they should have been. The couple left blank the line asking\\n\\nthem about any unpaid income taxes, and they listed “0” as the amount or value of\\n\\noutstanding liens and other “assessments payable.” Truth be told, the couple had\\n\\nnearly half a million dollars of outstanding federal tax liens filed against them.\\n\\n\\n\\n 4\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 5 of 32\\n\\n\\nAnd the truth was told, or at least uncovered, when Colony ran a background check\\n\\na few weeks later that turned up the tax liens. 1\\n\\n As you can imagine, that discovery wrenched the lending process to a halt.\\n\\nWhen he found out about the liens Sanchez was “very very angry” because it “was\\n\\nan item that absolutely should have been disclosed” earlier in the process. He saw\\n\\nthe lack of disclosure as a “deal killer” because he didn’t want “to close a\\n\\ntransaction with [those] outstanding liens.” Sanchez explained:\\n\\n This [sort of thing] is disclosed up front. This is something that\\n when you find out during when you run a background check and hear\\n for the first time, that that [sic] is a huge red flag in terms of whether or\\n not, you know, this borrower has been disclosing and been forthright\\n on what his financial condition is.\\n\\n Selevan, the CEO of Chesterfield, encouraged Sanchez not to walk away\\n\\nfrom the deal and to work with Waters while they tried to come up with a solution\\n\\nto the tax liens. Sanchez agreed to wait and see. He considered the liens a “gating\\n\\nissue” that had to be resolved before the loan could be closed. Waters’ attorney,\\n\\nDavid Gentry, understood that. Because he did, on December 13, 2013, he sent the\\n\\nIRS Taxpayer Advocate a letter asking for approval of a payment plan and\\n\\nrequesting that the IRS provide “immediate assistance” so Waters could close the\\n\\nloan with Colony by December 18.\\n\\n\\n\\n 1\\n Those liens were for $32,917.77 from tax year 2007; $37,109.61 from 2008; $68,111.60\\nfrom 2009; and $328,656.00 from 2010, for a total of $466,794.98.\\n\\n\\n 5\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 6 of 32\\n\\n\\n Also on December 13, Waters himself called his Congressman’s office to\\n\\nask for help getting the tax liens removed. The constituent services representative\\n\\ntold him that the lien removal process typically took 30–45 days, but that it would\\n\\ntake longer for him because the IRS had already closed for the holidays and would\\n\\nnot begin processing any new requests until January. Waters told the\\n\\nrepresentative to send the request to the IRS anyway, which she did.\\n\\nParaskevidekatriaphobics would note that December 13 was a Friday.\\n\\n The following Monday, December 16, Waters emailed Gentry a letter that\\n\\nseemed to be from the IRS. It was also dated December 16, 2013, and appeared to\\n\\nbe on “Department of the Treasury: Internal Revenue Service” letterhead and bore\\n\\nthe seal of the IRS Office of the Chief Counsel. It stated in full:\\n\\n December 16, 2013\\n\\n VIA US MAIL AND FACSIMILE\\n\\n Re: Case No. 5684374\\n\\n Dear Taxpayers:\\n\\n We are in receipt of your letter submitted to us by the office of The\\n Honorable Hank Johnson, Member, U.S. House of Representative[s]\\n regarding Case No. 5684374 dated December 13, 2013.\\n\\n The letter dated December 13, 2013 referencing Financial Hardship —\\n Immediate Assistance needed was a request to expedite your form\\n 433A which was received in our office December 2, 2013.\\n\\n In accordance with Section 5.14.2.1 your request for Partial Payment\\n Installment Agreement (PPIA) has been approved. A field\\n\\n 6\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 7 of 32\\n\\n\\n representative will contact you in 60–90 days to discuss in further detail\\n the financial agreement.\\n\\n I hope you find this letter helpful in the resolution of your immediate\\n requirements. Please maintain copies of this letter for your permanent\\n records.\\n\\n Sincerely,\\n\\n Rebecca Langford\\n District Director\\n\\n Four minutes after receiving the letter, Gentry forwarded it to Colony’s\\n\\nattorney, Beau Baker, and asked if it resolved Colony’s concerns. It did not.\\n\\nBaker worried that the details of the IRS payment plan the letter referred to were\\n\\nmonths away, while the parties were trying to close the loan in the next couple of\\n\\nweeks. Sanchez, the senior vice president for Colony, also concluded that the\\n\\nletter was insufficient because it did not contain any specifics of the IRS payment\\n\\nplan.\\n\\n Then there was the question of authenticity. After talking with tax experts at\\n\\nhis law firm, Baker became concerned that the letter might not really be from the\\n\\nIRS at all. He did a Google search for “Rebecca Langford District Director” and\\n\\nlearned that the IRS had phased out the “District Director” position nine years\\n\\nbefore, sometime around 2004. Baker wrote to the IRS to verify the letter, and\\n\\nTony Baldwin, the initial mortgage broker, asked Waters if he had the contact\\n\\n\\n\\n\\n 7\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 8 of 32\\n\\n\\ninformation for Rebecca Langford. Waters responded that he did not.\\n\\nUndeterred, Waters sent this letter to Baldwin, Gentry, and Selevan:\\n\\n December 30, 2013\\n\\n RE: IRS Letter\\n\\n To Whom It May Concern:\\n\\n To the best of my knowledge the letter from Rebecca Langford IRS\\n District Director and dated December 16 2013 with the subject matter\\n “Partial Payment Installment Agreement” is from Rebecca Langford\\n IRS District Director.\\n\\n A copy of the letter is attached to this email. Thank you.\\n\\n Kind Regards,\\n\\n Al Waters\\n\\n Waters’ letter didn’t appease Colony. A few days into the new year, in\\n\\nresponse to an email from Baldwin that the delay in financing was putting Waters\\n\\n“in a very bad position,” Sanchez (the Colony VP) emailed Baldwin, Waters, and\\n\\nothers working on the deal: “With all due respect, we were not expecting to deal\\n\\nwith IRS liens in the hundreds of thousands of dollars with no plan in place. I am\\n\\nnot comfortable with a ‘to be determined’ plan with no clear documentation.”\\n\\nSanchez later testified that the tax liens were “absolutely critical things to resolve\\n\\nbefore . . . getting even close to approving this loan for closing.”\\n\\n It turned out, of course, that the IRS letter was “outrageously bogus,” as\\n\\nWaters’ trial attorney would later put it. Nobody at the IRS had approved a\\n\\n 8\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 9 of 32\\n\\n\\npayment plan for Waters; the IRS Office of Chief Counsel did not have district\\n\\ndirectors in 2013; and there was no one at the IRS named Rebecca Langford. The\\n\\nletter was as phony as Piltdown Man, although it did not take forty-one years to\\n\\ndisprove. Baker soon confirmed that the letter was false, and Colony killed the\\n\\ntransaction in January 2014. Waters eventually got a loan from a different lender.\\n\\nThat was not all he got.\\n\\n B. Trial And Sentencing\\n\\n Waters also got indicted on two counts of wire fraud in violation of 18\\n\\nU.S.C. § 1343. One count was for sending the fraudulent IRS letter and the other\\n\\none was for sending the email stating that letter was authentic. Waters pleaded not\\n\\nguilty and went to trial in November 2017. He moved for a judgment of acquittal\\n\\nat the conclusion of the government’s case in chief, arguing that there was\\n\\ninsufficient evidence for the jury to find that he had created the fraudulent\\n\\ndocuments and that, in any event, the deceptive documents were not material to the\\n\\nproposed loan agreement. The district court denied the motion and Waters failed\\n\\nto renew it at the end of his case.\\n\\n Waters did not testify at trial, but through his counsel he argued to the jury\\n\\nthat the prosecution had not proved beyond a reasonable doubt that Waters was\\n\\nresponsible for the false IRS letter or that he had intentionally lied in his email\\n\\nabout the letter. He also argued that the IRS letter wasn’t material to the loan\\n\\n\\n\\n 9\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 10 of 32\\n\\n\\ntransaction because well into January 2014, a month after the IRS letter had been\\n\\ncirculated, the two mortgage brokers (Baldwin and Selevan) tried to find other\\n\\nways for Waters to pay off the tax liens and make the loan work.\\n\\n One issue that came up at trial was how to charge the jury on wire fraud.\\n\\nWaters requested a jury instruction on the difference between a scheme to deceive\\n\\nand a scheme to defraud based on this Court’s decision in United States v.\\n\\nTakhalov, 827 F.3d 1307, 1312–13 (11th Cir. 2016). He asked the judge to\\n\\ninstruct the jury that: “to defraud, one must intend to use deception to cause some\\n\\ninjury; but one can deceive without intending to harm at all”; and “if a Defendant\\n\\ndoes not intend to harm the victim — to obtain, by deceptive means, something to\\n\\nwhich the Defendant is not entitled — then he has not intended to defraud the\\n\\nvictim.” Doc. 45 at 12 (quoting Takhalov, 827 F.3d at 1312–13).\\n\\n The government opposed Waters’ proposed instruction as unnecessary and\\n\\nincomplete — unnecessary because the case was a “straightforward scheme to\\n\\ndefraud,” and incomplete because the proposed instruction did not instruct the\\n\\njurors how to tell if a scheme caused harm or not, which happened only if the lie\\n\\naffected the “nature of the bargain itself.” See Takhalov, 827 F.3d at 1313.\\n\\n The judge told the parties that he was not inclined to give Waters’ proposed\\n\\ninstruction, but that if he did give it, he would include an explanation about how to\\n\\ntell if the lie caused harm and affected the nature of the bargain itself. Waters did\\n\\n\\n\\n 10\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 11 of 32\\n\\n\\nnot agree to that solution. 2 The judge then overruled Waters’ proposal and gave\\n\\nthe jury a charge based on the pattern instruction, without any language about the\\n\\ndifference between defrauding and deceiving. See Pattern Crim. Jury Instr. 11th\\n\\nCir. OI O51 (2016).3 The jury found Waters guilty on both counts of wire fraud.\\n\\n\\n 2\\n Here’s the exchange:\\n\\n The Court: I am not inclined to give [Waters’ proposed instruction], but if I did\\n give it I would add the government’s instruction. How would you feel about that,\\n Mr. Kish [the attorney for Waters]?\\n\\n Mr. Kish: Having never heard this until this moment, the government’s instruction,\\n I would need to look at it. But my thinking is that the reason I structured my\\n instruction in the manner in which I did was because it is the essence of the\\n [Takhalov] decision, it is what the Court said the rule of law was. All of these\\n examples —\\n\\n The Court: Read the instruction again, the proposed defendant’s instruction?\\n\\n Mr. Kish: I have just described what is needed to prove a scheme to defraud;\\n however, quote, there is a difference between deceiving and defrauding. To\\n defraud . . . one must intend to use deception to cause some injury. But one can\\n deceive . . . without intending to harm at all. Put another way, one who defrauds\\n always deceives, but one can deceive without defrauding. A defendant schemes to\\n defraud only if he schemes to deprive someone of something of value by trick,\\n deceit, chicane, or over-reaching. . . . But if a defendant does not intend to harm\\n the victim to obtain by deceptive means something to which the defendant is not\\n entitled, then he has not intended to defraud the victim. Furthermore, a schemer\\n who tricks someone into a transaction has not schemed to defraud so long as he\\n does not intend to harm the person he intends to trick. And this is so, even if the\\n transaction would not have occurred but for the trick. For if there is no intent to\\n harm, there can only be a scheme to deceive, but not one to defraud.\\n\\n The Court: I think that is overly confusing, and the subject is adequately covered\\n by the charge as given now. So I respectfully overrule the defendant’s request for\\n inclusion of his proposed charge no. 9.\\n\\n(Italics omitted.)\\n 3\\n This is the charge the district court gave:\\n\\n\\n\\n\\n 11\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 12 of 32\\n\\n\\n\\n\\n It is a federal crime to use interstate wire, radio, or television\\ncommunications to carry out a scheme to defraud someone else. The defendant can\\nbe found guilty of this crime only if all the following facts are proved beyond a\\nreasonable doubt. One, the defendant knowingly devised or participated in a\\nscheme to defraud, or to obtain money or property by using false pretenses,\\nrepresentations, or promises. Two, the false pretenses, representations, or promises\\nwere about a material fact. Three, the defendant acted with the intent to defraud.\\nAnd four, defendant transmitted or caused to be transmitted, by wire or some\\ncommunication in interstate commerce, to help carry out the scheme to defraud.\\n\\n The phrase scheme to defraud includes any plan or course of action intended\\nto deceive or cheat someone out of money or property by using false or fraudulent\\npretenses, representations, or promises. A statement or representation is false or\\nfraudulent if it is about a material fact that the speaker knows is untrue, or makes\\nwith reckless indifference to the truth, and makes with the intent to defraud. A\\nstatement or representation may be false or fraudulent when it is a half truth, or\\neffectively conceals a material fact, and is made with the intent to defraud.\\n\\n A material fact is an important fact that a reasonable person would use to\\ndecide whether to do or not do something. A fact is material if it has the capacity\\nor natural tendency to influence a person’s decision. It doesn’t matter whether the\\ndecision maker actually relied on the statement or knew or should have known that\\nthe statement was false; however, not all misrepresentation or omissions constitute\\na scheme to defraud. The misrepresentation or omission must be material, and it\\nmust be one on which a person of ordinary prudence would rely.\\n\\n The intent to defraud is the specific intent to deceive or cheat someone,\\nusually for personal financial gain or to cause financial loss to someone else. To\\nprove intent, the government must establish that the defendant believed that the\\nsupposed victim would act or refrain from acting in reliance upon that\\nrepresentation. The government does not have to prove all of the details alleged in\\nthe indictment about the precise nature and purpose of the scheme. It also doesn’t\\nhave to prove that the material transmitted by interstate wire was itself false or\\nfraudulent, or that using the wire was intended as the specific or exclusive means\\nof carrying out the alleged fraud, or that the defendant personally made the\\ntransmission over the wire, and it doesn’t have to prove that the alleged scheme\\nactually succeeded in defrauding anyone.\\n\\n\\n\\n\\n 12\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 13 of 32\\n\\n\\n Before sentencing, the probation office prepared a presentence report and\\n\\nrecommended the application of an 18-level enhancement under U.S.S.G.\\n\\n§ 2B1.1(b)(1)(J) for an intended loss amount of more than $3.5 million but less\\n\\nthan $9.5 million. That would have made Waters’ total offense level 25 and his\\n\\nguidelines range 57 to 71 months in prison. Waters objected to the enhancement\\n\\non the basis that there was no actual or intended loss. He pointed out that the\\n\\nbuilding, which was to serve as collateral for the loan, had been appraised in April\\n\\n2014 to be worth $8.4 million, $2.4 million more than the amount of the proposed\\n\\nloan from Colony. The government agreed that this meant the enhancement should\\n\\nnot apply. That concession brought Waters’ guidelines range down to zero to six\\n\\nmonths, and the district court sentenced him to six months in prison and one year\\n\\nof supervised release.\\n\\n Waters appeals his convictions and sentence. 4\\n\\n II. THE TAKHALOV ISSUES\\n\\n Waters contends that the district court abused its discretion by not giving his\\n\\nproposed jury instruction on the difference between fraud and deceit. He also\\n\\ncontends that there was insufficient evidence for the jury to find him guilty of wire\\n\\nfraud because the government did not show that he intended to harm Colony. Both\\n\\ncontentions rely on our decision in Takhalov. Since that case came out, a judge of\\n\\n\\n 4\\n Waters is currently out on bond and has not begun serving his sentence.\\n\\n\\n 13\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 14 of 32\\n\\n\\nour Court has questioned some of the statements in that opinion. See United States\\n\\nv. Feldman, 931 F.3d 1245, 1265–74 (11th Cir. 2019) (W. Pryor, J., concurring).\\n\\nWe need not get into that here. Even assuming that every statement in our\\n\\nTakhalov opinion is correct, this case is distinguishable.\\n\\n A. The Takhalov Case\\n\\n The federal wire fraud statute makes criminal any “scheme or artifice to\\n\\ndefraud.” 18 U.S.C. § 1343. The statute does not define what that is, but we have.\\n\\nSee United States v. Bradley, 644 F.3d 1213, 1239–40 (11th Cir. 2011). And one\\n\\nthing we’ve recognized, tautologically perhaps, is that to be convicted under the\\n\\n§ 1343 fraud statute a defendant’s “scheme must be a scheme to defraud rather\\n\\nthan to do something other than defraud.” Takhalov, 827 F.3d at 1312. What is\\n\\nessential to a scheme to defraud is a question we confronted in Takhalov.\\n\\n The Takhalov defendants were a group of bar owners who had hired women\\n\\nto pose as tourists and lure visiting businessmen into the defendants’ bars and\\n\\nnightclubs. Id. at 1310. Then bartenders at the clubs would trick the unsuspecting\\n\\nbusinessmen into buying ridiculously overpriced alcohol by misrepresenting the\\n\\nprices of drinks or forging the men’s signatures on their credit card receipts. See\\n\\nid. at 1310–11. The defendants admitted that they had hired the “B-girls” to lure\\n\\nthe men into the clubs and that the women did not tell the men that they had been\\n\\nhired to do so. Id. But the defendants denied knowing about the fraud that took\\n\\n\\n\\n 14\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 15 of 32\\n\\n\\nplace once the men went into the clubs. Id. The defendants claimed that as far as\\n\\nthey knew, once the men came to the clubs they “got what they paid for.” Id. at\\n\\n1311.\\n\\n The Takhalov defendants asked the district court to instruct their jury that\\n\\n“failure to disclose the financial arrangement between the B-girls and the Bar, in\\n\\nand of itself, is not sufficient to convict a defendant” of wire fraud. Id. at 1314\\n\\n(brackets and quotation marks omitted). The district court refused to give that\\n\\ninstruction, the government argued that the jury could return a verdict based on\\n\\nthat initial trickery alone, and the jury did. Id. at 1310–11. We reversed the\\n\\ndefendants’ convictions. Id. at 1324.\\n\\n Our reasoning proceeded in three main steps. First, we noted that “there is a\\n\\ndifference between deceiving and defrauding: to defraud, one must intend to use\\n\\ndeception to cause some injury; but one can deceive without intending to harm at\\n\\nall.” Id. at 1312. Second, that distinction meant that “if a defendant does not\\n\\nintend to harm the victim — to obtain, by deceptive means, something to which the\\n\\ndefendant is not entitled — then he has not intended to defraud the victim.” Id. at\\n\\n1313 (brackets and quotation marks omitted). And third, “[f]rom that conclusion, a\\n\\ncorollary follows: a schemer who tricks someone to enter into a transaction has not\\n\\n‘schemed to defraud’ so long as he does not intend to harm the person he intends to\\n\\ntrick.” Id. “[T]his is so,” we said, “even if the transaction would not have\\n\\n\\n\\n 15\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 16 of 32\\n\\n\\noccurred but for the trick. For if there is no intent to harm, there can only be a\\n\\nscheme to deceive, but not one to defraud.” Id.\\n\\n To tell the difference between a scheme to deceive and a scheme to defraud,\\n\\nwe instructed courts to look at “the nature of the bargain itself.” Id. at 1313. And\\n\\na lie about the nature of the bargain can take two primary forms. Id. First, “the\\n\\ndefendant might lie about the price (e.g., if he promises that a good costs $10 when\\n\\nit in fact costs $20).” Id at 1313–14. Or second, “he might lie about the\\n\\ncharacteristics of the good (e.g., if he promises that a gemstone is a diamond when\\n\\nit is in fact a cubic zirconium).” Id. at 1314. “In each case, the defendant has lied\\n\\nabout the nature of the bargain and thus in both cases the defendant has committed\\n\\nwire fraud.” Id.\\n\\n By contrast, we explained, “if a defendant lies about something else — e.g.,\\n\\nif he says that he is the long-lost cousin of a prospective buyer — then he has not\\n\\nlied about the nature of the bargain, has not ‘schemed to defraud,’ and cannot be\\n\\nconvicted of wire fraud on the basis of that lie alone.” Id. And that is so even if\\n\\nthe buyer would not have bought anything but for the lie. Id. (citing United States\\n\\nv. Shellef, 507 F.3d 82, 108 (2d Cir. 2007) (drawing “a fine line between schemes\\n\\nthat do no more than cause their victims to enter into transactions that they would\\n\\notherwise avoid — which do not violate the mail or wire fraud statutes — and\\n\\nschemes that depend for their completion on a misrepresentation of an essential\\n\\n\\n\\n 16\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 17 of 32\\n\\n\\nelement of the bargain — which do violate the mail and wire fraud statutes”);\\n\\nUnited States v. Starr, 816 F.2d 94, 98 (2d Cir. 1987) (“Misrepresentations\\n\\namounting only to a deceit are insufficient to maintain a mail or wire fraud\\n\\nprosecution. Instead, the deceit must be coupled with a contemplated harm to the\\n\\nvictim . . . affect[ing] the very nature of the bargain itself.”) (internal quotation\\n\\nmarks omitted); United States v. Regent Office Supply Co., 421 F.2d 1174, 1182\\n\\n(2d Cir. 1970) (“[W]e conclude that the defendants intended to deceive their\\n\\ncustomers but they did not intend to defraud them, because the falsity of their\\n\\nrepresentations was not shown to be capable of affecting the customer’s\\n\\nunderstanding of the bargain nor of influencing his assessment of the value of the\\n\\nbargain to him, and thus no injury was shown to flow from the deception.”).\\n\\n B. The District Court’s Jury Instructions\\n\\n With that background in mind, we turn to Waters’ contention that the district\\n\\ncourt erred by refusing to give his Takhalov-based jury instruction. We review\\n\\nthat decision only for an abuse of discretion. United States v. Dohan, 508 F.3d\\n\\n989, 993 (11th Cir. 2007). “The failure of a district court to give an instruction is\\n\\nreversible error where the requested instruction (1) was correct, (2) was not\\n\\nsubstantially covered by the charge actually given, and (3) dealt with some point in\\n\\nthe trial so important that failure to give the requested instruction seriously\\n\\n\\n\\n\\n 17\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 18 of 32\\n\\n\\nimpaired the defendant’s ability to conduct his defense.” United States v.\\n\\nEckhardt, 466 F.3d 938, 947–48 (11th Cir. 2006).\\n\\n Waters requested that the district court give this instruction:\\n\\n I have just described what is needed to prove a scheme to\\n defraud. However, there is a difference between deceiving and\\n defrauding; to defraud, one must intend to use deception to cause some\\n injury; but one can deceive without intending to harm at all. Put another\\n way, one who defrauds always deceives, but one can deceive without\\n defrauding.\\n\\n A Defendant schemes to defraud only if he schemes to deprive\\n someone of something of value by trick, deceit, chicane or\\n overreaching. But if a Defendant does not intend to harm the\\n victim — to obtain, by deceptive means, something to which the\\n Defendant is not entitled — then he has not intended to defraud the\\n victim.\\n\\n Furthermore, a schemer who tricks someone to enter into a\\n transaction has not schemed to defraud so long as he does not intend to\\n harm the person he intends to trick. And this is so even if the transaction\\n would not have occurred but for the trick. For if there is no intent to\\n harm, there can only be a scheme to deceive, but not one to defraud.\\n\\n(Alterations and quotation marks omitted).\\n\\n The district court did not abuse its discretion when it refused to give that\\n\\ninstruction. Though composed of quotations from our opinion in Takhalov,\\n\\nWaters’ “proposed instruction was an incomplete statement of the law and would\\n\\nhave confused the jury.” United States v. Solomon, 686 F.2d 863, 876 (11th Cir.\\n\\n1982). The proposal emphasized the requirement that a defendant have the intent\\n\\nto harm, but it never defined what harm meant. And it introduced the distinction\\n\\n\\n\\n 18\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 19 of 32\\n\\n\\nbetween a scheme to deceive and a scheme to defraud, but it didn’t tell the jurors\\n\\nhow to tell the difference between them. Without those tools the jury could hardly\\n\\nhave been expected to apply our Takhalov decision correctly.\\n\\n The government pointed all of that out at the charge conference when it\\n\\nasked the district court to supply the missing link in Waters’ instruction. The\\n\\nadditional language proposed by the government would have instructed the jury\\n\\nthat “[t]he ‘scheme to defraud,’ as that phrase is used in the wire fraud statute,\\n\\nrefer[s] only to those schemes in which a defendant lies about the nature of the\\n\\nbargain itself.” Doc. 89 at 5–6 (quoting Takhalov, 827 F.3d at 1313). That\\n\\naddition would have enabled the jurors to tell the difference between the two kinds\\n\\nof schemes because it would have defined for them what “harm” means. To recap:\\n\\nIn a scheme to deceive, the victim of the lie hasn’t been harmed because he still\\n\\nreceived what he paid for. But in a scheme to defraud, the victim has been harmed\\n\\nbecause the misrepresentation affected the nature of the bargain, either because the\\n\\nperpetrator lied about the value of the thing (for example, promising something\\n\\ncosts $10 when it actually costs $20), or because he lied about the thing itself (for\\n\\nexample, promising a gemstone is a diamond when it is actually a cubic\\n\\nzirconium). Takhalov, 827 F.3d at 1313–14. Either way, though, the victim didn’t\\n\\nget what he paid for.\\n\\n\\n\\n\\n 19\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 20 of 32\\n\\n\\n By not including that distinction, and then not accepting the government’s\\n\\nproposal to add it, Waters asked the court to give an incomplete and misleading\\n\\njury instruction. The court did not abuse its discretion when it deemed the\\n\\ninstruction “overly confusing.” See United States v. Cooper, 926 F.3d 718, 736\\n\\n(11th Cir. 2019) (affirming district court’s rejection of a defendant’s proposed\\n\\ninstruction “because it was misleading and confusing”) (quotation marks omitted);\\n\\nUnited States v. Silverman, 745 F.2d 1386, 1396 (11th Cir. 1984) (noting that a\\n\\ndistrict court “is bound to refuse a requested instruction that is incomplete,\\n\\nerroneous, or misleading”).\\n\\n Waters’ argument also fails for another reason. Unlike in Takhalov, his\\n\\nproposed jury instruction did not concern a “point in the trial so important that\\n\\nfailure to give the requested instruction seriously impaired [his] ability to conduct\\n\\nhis defense.” Eckhardt, 466 F.3d at 947–48. Recall that Waters had two main\\n\\ntheories at trial. The first was that he didn’t create the IRS letter and didn’t know it\\n\\nwas fake when he sent it to Colony. The district court’s refusal to give the\\n\\nproposed instruction did not impact the presentation of that theory at all.\\n\\n Waters’ second theory was that the IRS letter “didn’t matter” because the\\n\\n“deal was going forward with or without that letter.” His attorney made the point\\n\\nthis way in his closing argument:\\n\\n Did the Langford letter even make any difference, considering what\\n happened over the course of time? We will go over it again, but I think\\n\\n 20\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 21 of 32\\n\\n\\n we pretty well established this at trial. . . . After the Rebecca Langford\\n letter is sent on [December] 16th, minutes later, Larry Selevan,\\n chomping at the bit, says, well, good enough for me. I am ready to go.\\n Nobody cared about the Rebecca Langford Letter. Nobody cared about\\n the taxes. . . . The Langford letter didn’t mean squat. And the reason\\n it didn’t mean squat is because of what the witnesses told you. We\\n wanted the deal to finalize. . . . Nobody worried about whether the\\n Rebecca Langford letter was authentic. To use the words of the\\n lawyers, it has to be material. It has to be important. It was not\\n important.\\n\\n As Waters’ attorney told the jury, that is an argument about materiality. The\\n\\njudge explicitly defined that term for the jurors (“A material fact is an important\\n\\nfact that a reasonable person would use to decide whether to do or not do\\n\\nsomething”) and instructed them that to be guilty of wire fraud Waters must have\\n\\nomitted or misrepresented a fact that was material. See Pattern Crim. Jury Instr.\\n\\n11th Cir. OI O51 (2016). So when Waters argued that the false IRS letter was not\\n\\nmaterial because the deal was going forward “with or without that letter,” and\\n\\nwhen he said that the letter did not concern a material fact because “nobody cared\\n\\nabout the taxes,” his arguments were in accord with the court’s instructions. Of\\n\\ncourse, the deal did not go forward “with or without that letter” and that may be\\n\\none reason the jury rejected his argument. But the jury’s rejection of Waters’\\n\\ntheory does not mean he was “seriously impaired” in his ability to present that\\n\\ntheory to the jury. Eckhardt, 466 at 948. He wasn’t.\\n\\n This is materially different from what happened in Takhalov. Unlike in\\n\\nWaters’ case, the jury instruction the Takhalov defendants requested was integral\\n\\n 21\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 22 of 32\\n\\n\\nto their argument. Their argument did not hinge on whether the businessmen still\\n\\nwould have gone into the clubs had they known of the true relationship between\\n\\nthe B-Girls and the bar owners. See 827 F.3d at 1310–11. Instead, the defendants\\n\\nargued that their concealment of their relationship with the B-Girls did not\\n\\nconstitute wire fraud, regardless of whether that concealment was material to the\\n\\nbusinessmen’s decisions to enter the clubs. That is why the defendants asked for\\n\\nthis jury instruction: “Failure to disclose the financial arrangement between the B-\\n\\nGirls and the Bar, in and of itself, is not sufficient to convict a defendant of any\\n\\noffense.” Id. at 1311 (alterations omitted). The Takhalov defendants did not get to\\n\\npresent their theory to the jury because the district court rejected their proposed\\n\\njury instruction that would have put that theory before the jury. As we explained,\\n\\n“[w]ithout an instruction supporting the defendants’ theory, the jury was not\\n\\nrequired to believe this theory . . . [and] the jury could believe what the\\n\\ngovernment argued in its closing: that the concealment was material and the\\n\\ndefendants acted with the intent to deceive or cheat the victims.” Id. at 1322–23.\\n\\n By contrast, Waters’ proposed jury instruction on the difference between\\n\\nfraud and deceit did not propose either of his two defense theories. As a result, the\\n\\nrejection of his jury instruction did not impair his presentation of a defense theory.\\n\\nSee Eckhardt, 466 F.3d at 947–48 (holding that defendant accused of violating the\\n\\nCommunications Decency Act was not impaired by trial court’s refusal to alter its\\n\\n\\n\\n 22\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 23 of 32\\n\\n\\njury instruction defining what constituted an “obscene” phone call because\\n\\ndefendant’s theory of the case was that he did not make the alleged phone calls).\\n\\nNor did Waters change a theory at trial in response to the court’s rejection of his\\n\\nproposed jury instruction, as the Takhalov defendants did. Not until Waters got to\\n\\nthis Court did he argue that his misrepresentations weren’t wire fraud because they\\n\\ndid not affect the bargain between the parties. (More on that argument below.) He\\n\\ndid not consent to the government’s proposed instruction that would have\\n\\ninstructed the jury on that very topic. Given all of that, the district court did not\\n\\nabuse its discretion when it declined to give Waters’ proposed jury instruction.5\\n\\n C. Sufficiency Of The Evidence\\n\\n We turn now to Waters’ second Takhalov-based argument: that the district\\n\\ncourt should have granted his motion for a judgment of acquittal because there was\\n\\ninsufficient evidence that he intended to harm Colony. “Ordinarily, we review de\\n\\nnovo whether sufficient evidence supports a conviction, viewing the evidence and\\n\\ntaking all reasonable inferences in favor of the jury’s verdict.” United States v.\\n\\nFries, 725 F.3d 1286, 1291 (11th Cir. 2013). But Waters did not renew his motion\\n\\n\\n 5\\n One side point is worth addressing. At the final charge conference Waters argued that\\nhis proposed jury instruction was needed “[b]ecause there is the chance that jurors could think\\nthat . . . the failure to include all of the tax liens on . . . the personal financial statement by itself\\nwould be sufficient to show fraud.” By not raising this point on appeal Waters has abandoned\\nany argument that the jury found him guilty based on the false financial statement instead of the\\nfraudulent IRS letter and the email Waters sent affirming the IRS letter. See AT&T Broadband\\nv. Tech Commc’ns, Inc., 381 F.3d 1309, 1320 n.14 (11th Cir. 2004) (“Issues not raised on appeal\\nare considered abandoned.”).\\n\\n\\n 23\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 24 of 32\\n\\n\\nfor acquittal at the close of all the evidence or present to the district court his\\n\\ncurrent theory of why there was insufficient evidence for the jury to find him\\n\\nguilty. Because of his failure to renew the motion, “we will reverse [his]\\n\\nconviction only where doing so is necessary to prevent a manifest miscarriage of\\n\\njustice.” Id. (quotation marks omitted). Which means only if we find “either that\\n\\nthe record is devoid of evidence of an essential element of the crime or that the\\n\\nevidence on a key element of the offense is so tenuous that a conviction would be\\n\\nshocking.” Id. (quotation marks omitted).\\n\\n Relying on Takhalov, Waters argues that the tax liens were peripheral to the\\n\\nproposed loan transaction and, as a result, any lies about those liens (including the\\n\\nletters he sent about the make-believe payment plan with the IRS) could not\\n\\nconstitute wire fraud because they did not affect the bargain between the parties.\\n\\nThis is basically a repackaging of his jury charge argument, but with a twist: it\\n\\nrelies on the law in the instruction proposed by the government instead of the\\n\\ninstruction he suggested.\\n\\n In Waters’ telling, the tax liens merely “went to the integrity of\\n\\nmanagement,” and the projected cash flow from the new medical building formed\\n\\nthe heart of the bargain. He says that cash flow combined with the $2.4 million\\n\\n“over-collateralization” of the building itself “ensured repayment of the requested\\n\\n\\n\\n\\n 24\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 25 of 32\\n\\n\\nLoan in full.” And, as a result, “the removal of [the] tax liens was not ‘part of the\\n\\nbargain.’”\\n\\n The jurors heard plenty of evidence that would cause them to disbelieve that\\n\\ntheory. For example, Sanchez, Colony’s senior vice president, called the discovery\\n\\nof the tax liens “a deal killer” because he did not “want[] to close a transaction\\n\\nwith the[] outstanding liens.” And even after the folks at Chesterfield Faring\\n\\nconvinced Sanchez not to walk away from the deal when he first learned of the\\n\\nliens, he still considered the tax liens a “gating issue” that had to be resolved\\n\\nbefore he would consider making the loan. As he testified at trial: The liens were\\n\\n“absolutely critical things to resolve before . . . getting even close to approving\\n\\nth[e] loan for closing.”\\n\\n Colony’s attorney, Beau Baker, testified to much the same thing. Once he\\n\\ndiscovered that the tax liens existed, he stopped working on the due diligence and\\n\\ndocumentation for the loan until the liens could be resolved. He explained to the\\n\\njury: “[I]f there is a creditor out there, especially a super creditor like the Internal\\n\\nRevenue Service, that creditor could come after your borrower later on or come\\n\\nafter the guarantor, and that could put the payment stream that is coming to my\\n\\nclient in jeopardy.” The attorney representing Waters in the deal, David Gentry,\\n\\nalso understood that Colony “required either the tax liens get paid off or that some\\n\\n\\n\\n\\n 25\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 26 of 32\\n\\n\\nsort of payment plan be in place with the IRS to pay it off over time” before the\\n\\nloan could be closed.\\n\\n To all of that, Waters says: Doesn’t matter. He argues that Takhalov teaches\\n\\nthat there’s a difference between a scheme to deceive and a scheme to defraud.\\n\\nAnd he says defrauding means that the material misrepresentation must affect the\\n\\nnature of the bargain and not something else. Waters points to Takhalov’s\\n\\nreasoning that “even if the transaction would not have occurred but for the trick,”\\n\\nTakhalov, 827 F.3d at 1313, “a wire-fraud case must end in an acquittal if the jury\\n\\nnevertheless believes that the alleged victims [would have] received exactly what\\n\\nthey paid for,” id. at 1314 (quotation marks omitted). Purporting to apply that\\n\\nreasoning here, Waters argues that his case should have ended in an acquittal\\n\\nbecause, as the government itself conceded at sentencing, the collateral was worth\\n\\n$2.4 million more than the amount of the loan.\\n\\n There are three reasons why Waters’ conclusion does not follow from his\\n\\npremise. The first is that it misconstrues the nature of the bargain with Colony. As\\n\\nthe government persuasively points out, the bargain was not for Colony to be\\n\\nsucked into a time-consuming and expensive foreclosure to mitigate its losses if\\n\\nWaters was unable to make the payments on the loan. The bargain was to make a\\n\\nsolid loan in the first place and to receive loan payments without the threat of\\n\\noutstanding tax liens getting in the way.\\n\\n\\n\\n 26\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 27 of 32\\n\\n\\n That theory was supported by lots of testimony at trial. It’s why Sanchez\\n\\ndescribed the tax liens as a “gating issue,” and why Baker told the jury that he was\\n\\nworried about the liens because they “could put the payment stream that [was]\\n\\ncoming to [Colony] in jeopardy.” So the jury was free to conclude that Waters’\\n\\ncreditworthiness, as the guarantor of the loan with Sondial, affected the value of\\n\\nthe transaction and was part of the bargain itself. See United States v. Appolon,\\n\\n715 F.3d 362, 368–69 (1st Cir. 2013) (holding that misrepresentations in loan\\n\\napplications used “to assess [a] borrower’s creditworthiness” were material\\n\\nbecause they were “capable of influencing [the lender’s] decision”) (quotation\\n\\nmarks omitted); see also United States v. Rossomando, 144 F.3d 197, 201 (2d Cir.\\n\\n1998) (“[W]here a defendant deliberately supplies false information to obtain a\\n\\nbank loan . . . the defendant’s good-faith intention to pay back the loan is no\\n\\ndefense because he intended to inflict a genuine harm upon the bank — i.e., to\\n\\ndeprive the bank of the ability to determine the actual level of credit risk and to\\n\\ndetermine for itself on the basis of accurate information whether, and at what price,\\n\\nto extend credit to the defendant.”) (footnote omitted).\\n\\n The second reason why the appraised value of the collateral exceeding the\\n\\namount of the loan does not render the misrepresentations about the tax liens\\n\\nimmaterial is that the appraisal of the collateral did not exist until after the deal\\n\\nwith Colony fell through. Waters’ misrepresentations to Colony about the tax liens\\n\\n\\n\\n 27\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 28 of 32\\n\\n\\noccurred in December of 2013. Colony learned in late January of 2014 that the\\n\\nletter from the IRS was fake. It was at that point that Colony walked away from\\n\\nthe deal for good. Waters then courted another company for the loan, and it was\\n\\nthat other company, Thorofare, that had the property appraised in April of 2014.\\n\\nThe appraisal did not exist when Waters misrepresented the facts about the tax\\n\\nliens, when Colony was considering Waters’ loan application, when Colony\\n\\ndiscovered the misrepresentations, or when it walked away. Something that did\\n\\nnot exist at the time of the fraud cannot evidence a lack of intent to defraud.\\n\\n The third reason why the appraisal cannot figure into the sufficiency of the\\n\\nevidence to prove intent to defraud is that sufficiency is judged based only on the\\n\\nevidence before the jury. When deciding whether there was sufficient evidence to\\n\\nconvict, we may not consider evidence the jury never heard. See United States v.\\n\\nDeSimone, 660 F.2d 532, 538–39 (5th Cir. Unit B Nov. 1981). No evidence of the\\n\\nappraisal was ever put before the jury. None. The first time it was mentioned was\\n\\nin Waters’ sentencing memoranda, six months after the jury had returned its\\n\\nverdict and gone home. That was six months too late.\\n\\n III. THE OTHER ISSUES\\n\\n Waters has two more contentions, neither of which has merit. First, he\\n\\ncontends that the district court committed reversible error by not making an “on-\\n\\n\\n\\n\\n 28\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 29 of 32\\n\\n\\nthe-record waiver inquiry” about his decision not to testify at trial. 6 Waters was\\n\\nrepresented by an able defense attorney whom the trial judge complimented several\\n\\ntimes for doing a good job. And Waters acknowledges that there is no “per se\\n\\nrequirement that the district court advise the defendant of his right to testify and\\n\\nconduct an on-the-record inquiry into whether a non-testifying defendant\\n\\nknowingly, voluntarily, and intelligently waived the right to testify.” United States\\n\\nv. Van De Walker, 141 F.3d 1451, 1452 (11th Cir. 1998). So why does he contend\\n\\nthat the district court committed reversible error? Because he was the “only person\\n\\nin a position to refute the prosecution’s case,” thereby making his situation\\n\\n“exceptional.”\\n\\n\\n\\n 6\\n The parties disagree about what standard of review applies to this claim. The\\ngovernment argues that plain error review applies because Waters did not object at trial, and that\\nseems right. But Waters relies on our decision in United States v. Hung Thien Ly, 646 F.3d\\n1307, 1318 (11th Cir. 2011), to argue that the standard of review is “unsettled” and that\\nstructural error analysis may apply.\\n In Hung Thien Ly, the pro se defendant failed to object at trial to the district court’s\\nfailure to correct his misunderstanding of his right to testify. We rejected the government’s\\nargument that we should review only for plain error. Id. at 1312 & n.5. We explained: “The\\nGovernment contends that plain-error review must apply because Ly never objected to the\\ndistrict court’s alleged denial of his right to testify. In the context of Ly’s claim, this argument is\\nabsurd. Ly’s argument on appeal is that his confusion regarding his right to testify was so\\napparent during the court-initiated colloquy that the district court was obligated to correct his\\nmisunderstanding. By definition, Ly could not have objected to the district court’s actions, for\\nhis claim lies in his ignorance of the law.” Id. at 1312 n.5. Looking at the issue de novo, we\\nheld that the district court had erred by not correcting the pro se defendant’s misunderstanding of\\nhis right to testify, and then we assumed without deciding that harmless-error analysis applied\\nand held that the error was harmful. Id. at 1318.\\n There are significant differences between this case and Hung Thien Ly. The most\\nobvious of them is that Waters was represented by able counsel while the defendant in Hung\\nThien Ly had no counsel. But even if we assume that de novo review applies, Waters still cannot\\nprevail on his claim that the district court should have inquired about his decision not to testify.\\n\\n\\n 29\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 30 of 32\\n\\n\\n We don’t accept that as a ground for relief. While being in a position to\\n\\nrefute the prosecution’s case may have been a good reason for Waters to take the\\n\\nstand (though we doubt it’s all that “exceptional”), it certainly isn’t enough to\\n\\nestablish that his decision not to testify was unknowingly and unintelligently made.\\n\\nSee Hung Thien Ly, 646 F.3d at 1317 (“[A]bsent evidence to the contrary, district\\n\\ncourts should presume that the defendant, even a pro se defendant, has made a\\n\\nknowing and intelligent decision about whether to testify.”).\\n\\n Second, Waters also contends that the district court made an erroneous\\n\\nfactual finding that impacted his sentence. We normally review the procedural\\n\\nreasonableness of a sentence under an abuse-of-discretion standard, and a court\\n\\nabuses its discretion if it “select[s] a sentence based on clearly erroneous facts.”\\n\\nGall v. United States, 552 U.S. 38, 51 (2007). Because Waters did not object at the\\n\\nsentence hearing, however, we review the alleged error only for plain error. See\\n\\nUnited States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014) (using plain\\n\\nerror review because defendant failed to object on procedural reasonableness\\n\\ngrounds at sentencing). “Under plain error review, we can correct an error only\\n\\nwhen (1) an error has occurred, (2) the error was plain, (3) the error affected\\n\\nsubstantial rights, and (4) the error seriously affects the fairness, integrity or public\\n\\nreputation of judicial proceedings.” Dupree v. Warden, 715 F.3d 1295, 1301 (11th\\n\\nCir. 2013).\\n\\n\\n\\n 30\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 31 of 32\\n\\n\\n Waters’ contention is based on a comment the judge made at the end of the\\n\\nsentence hearing, after he had announced Waters’ six-month sentence:\\n\\n I don’t think this man is ever going to commit another crime. It\\n may not feel like it, but he got a break. I mean, what a break. If that\\n loan had not been repaid, we are looking at about a five-year sentence,\\n so he got that break.\\n\\n That was a misstatement. Waters had not paid back a loan to Colony\\n\\nbecause there never was a loan from Colony to repay. But Waters has not shown\\n\\nthat the misstatement constituted a clearly erroneous factual finding because he has\\n\\nnot shown that it was a factual finding at all. Earlier in the hearing the district\\n\\ncourt formally adopted the unobjected-to factual findings in the PSR. Those\\n\\nfindings made clear that although Waters had applied for a loan from Colony, he\\n\\nhad not received one. The judge said that the fact that Colony had not lost any\\n\\nloaned money “ma[de] a big difference” for sentencing purposes. That is literally\\n\\ntrue. Viewed in this context, we can’t say that the judge’s slip up about the loan\\n\\nhaving been repaid — as opposed to never having been made — was a relevant\\n\\nfact finding instead of a stray comment at the end of a long hearing. And it is one\\n\\nto which there was no objection.\\n\\n Even if we were to consider the comment a clearly erroneous factual finding,\\n\\nWaters has still not shown that it affected his sentence, as required to establish\\n\\nplain error. See Vandergrift, 754 F.3d at 1312 (“In order for an error to have\\n\\naffected substantial rights, it must have affected the outcome of the district court\\n\\n 31\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 32 of 32\\n\\n\\nproceedings.”) (quotation marks omitted). According to Waters, the misstatement\\n\\naffected his sentence because it showed that the judge “did not believe that [he]\\n\\ndeserved any leniency because he already had received the benefit of the Loan\\n\\nbeing repaid.” But the judge himself gave three reasons for why he thought that\\n\\nWaters did deserve leniency: (1) there was no economic harm to Colony,\\n\\n(2) Waters’ conduct had otherwise been lawful and upstanding, and (3) Waters had\\n\\na lot of community support. Not only that, but after the judge had commented at\\n\\nthe beginning of the sentence hearing that he did not think that the government’s\\n\\nproposed sentence of a year and a day would be long enough, he ended up\\n\\nsentencing Waters to only six months. That indicates the judge had an open mind\\n\\nand gave consideration to Waters’ arguments at sentencing. Waters’ speculation\\n\\nabout a single comment that the judge made after he had imposed the sentence is\\n\\nnot enough to show that it affected Waters’ sentence.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 32\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4436967/\", \"author_raw\": \"ED CARNES, Chief Judge\"}]}"},"judge1":{"kind":"string","value":"ED CARNES"},"judge2":{"kind":"string","value":"JULIE CARNES"},"judge3":{"kind":"string","value":"CLEVENGER"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"ED CARNES\": \", Chief\", \"JULIE CARNES\": \", Circuit\", \"CLEVENGER\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4659714/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Alphonso I. Waters, Jr.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-09-10\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-11333 Date Filed: 09/10/2019 Page: 1 of 32\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 18-11333\n ________________________\n\n D.C. Docket No. 1:16-cr-00407-TCB-JSA-1\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n\n versus\n\nALPHONSO I. WATERS, JR.,\n\n Defendant-Appellant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Northern District of Georgia\n ________________________\n\n (September 10, 2019)\n\nBefore ED CARNES, Chief Judge, JULIE CARNES, and CLEVENGER,∗ Circuit\nJudges.\n\nED CARNES, Chief Judge:\n\n ∗ Honorable Raymond C. Clevenger, III, United States Circuit Judge for the Federal\nCircuit, sitting by designation.\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 2 of 32\n\n\n In this wire fraud case, we are once again confronted with the question of\n\nwhen a lie is just a lie and when it is a federal crime. “It is conceded that there is a\n\nclass of lies, voluntary, aimless, yet weak and wicked lies,” Green’s Adm’r v.\n\nBryant, 2 Ga. 66, 68 (1847), that our law does not forbid. And the federal wire\n\nfraud statute “forbids only schemes to defraud, not schemes to do other wicked\n\nthings, e.g., schemes to lie, trick, or otherwise deceive.” United States v.\n\nTakhalov, 827 F.3d 1307, 1310 (11th Cir.), as revised (Oct. 3, 2016), opinion\n\nmodified on denial of reh’g, 838 F.3d 1168 (11th Cir. 2016). “The difference,” we\n\nhave explained, “is that deceiving does not always involve harming another\n\nperson; defrauding does.” Id.\n\n Alphonso Waters, Jr., relies on that distinction to argue that the lies he told\n\nin the process of obtaining a $6 million loan did not amount to fraud. He sought\n\nthat loan in 2013 from a private lender who discovered that Waters had several\n\nyears’ worth of federal tax liens outstanding. To calm the lender’s concerns,\n\nWaters sent it a letter that appeared to be from the IRS approving him for a\n\npayment plan to pay off the tax liens. Then he sent the lender another letter stating\n\nthat, as far as he knew, the first letter really was from the IRS. Both of those letters\n\nwere lies –– lock, stock, and barrel; stem to stern, top to bottom. But, Waters\n\nargues, they weren’t statutorily damned lies; they weren’t lies constituting wire\n\nfraud because they didn’t affect the bargain between the parties. He reasons that\n\n\n\n 2\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 3 of 32\n\n\nany lie he told about his creditworthiness was harmless because the collateral for\n\nthe loan was worth $8.4 million, which is more than the total amount of the loan.\n\nWe are not convinced.\n\n I. BACKGROUND\n\n A. The Scheme\n\n Waters was the CEO of Family Practice of Atlanta, a medical practice he\n\nowned and operated with his wife, Dr. Sondi Moore-Waters, a physician. He ran\n\nthe business side of things, she ran the medical side. [Id.] Sometime around 2011\n\nthey decided they needed a bigger building for the growing practice. They formed\n\nSondial Properties, LLC (a portmanteau of the couple’s names, Sondi and Al), and\n\nthe company borrowed about $4 million in the form of two different construction\n\nloans from JP Morgan Chase Bank. Those loans matured on October 18, 2013,\n\nand Sondial immediately defaulted on them because of delays and cost overruns\n\nwith the construction.\n\n Waters sought the help of a commercial mortgage broker in finding a $6\n\nmillion transitional loan so he could pay back the $4 million to Chase and also\n\nfinish construction. Waters’ broker, Tony Baldwin, contacted Chesterfield Faring,\n\nLtd., a real estate services and investment firm that specialized in finding funding\n\nfor lapsing or lapsed loans. Chesterfield’s CEO was a man named Larry Selevan.\n\nSelevan and his company helped borrowers find loans by researching the financial\n\n\n\n 3\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 4 of 32\n\n\nviability of a proposed project and packaging that information so potential lenders\n\ncould easily decide whether to provide financing.\n\n Selevan proposed the loan project to Colony Capital, LLC. Colony was a\n\nprivate equity firm and real estate investment trust that provided financing for\n\ncommercial realty projects deemed to exceed a bank’s normal risk profile.\n\nMichael Sanchez, the senior vice president of Colony, oversaw Sondial’s loan\n\napplication. He understood that the loan “had to be closed very quickly” so Waters\n\ncould pay off Chase and meet construction deadlines. On October 25, 2013,\n\nSanchez sent Chesterfield a term sheet outlining the terms and conditions that\n\nColony proposed for the loan. Under the proposal Colony would lend Sondial $6\n\nmillion and, in exchange, it would receive a first priority mortgage on the new\n\nbuilding and rights to all leases and rents there, as well as about a 7% interest rate\n\nfor the two-year initial term. Al Waters signed the term sheet on behalf of Sondial.\n\n With the terms of the loan all set, the due diligence phase began. Waters and\n\nMoore-Waters filled out a personal financial statement for Colony, listing their\n\nassets, income, liabilities, and things of that nature. To say the least, they weren’t\n\nas forthcoming as they should have been. The couple left blank the line asking\n\nthem about any unpaid income taxes, and they listed “0” as the amount or value of\n\noutstanding liens and other “assessments payable.” Truth be told, the couple had\n\nnearly half a million dollars of outstanding federal tax liens filed against them.\n\n\n\n 4\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 5 of 32\n\n\nAnd the truth was told, or at least uncovered, when Colony ran a background check\n\na few weeks later that turned up the tax liens. 1\n\n As you can imagine, that discovery wrenched the lending process to a halt.\n\nWhen he found out about the liens Sanchez was “very very angry” because it “was\n\nan item that absolutely should have been disclosed” earlier in the process. He saw\n\nthe lack of disclosure as a “deal killer” because he didn’t want “to close a\n\ntransaction with [those] outstanding liens.” Sanchez explained:\n\n This [sort of thing] is disclosed up front. This is something that\n when you find out during when you run a background check and hear\n for the first time, that that [sic] is a huge red flag in terms of whether or\n not, you know, this borrower has been disclosing and been forthright\n on what his financial condition is.\n\n Selevan, the CEO of Chesterfield, encouraged Sanchez not to walk away\n\nfrom the deal and to work with Waters while they tried to come up with a solution\n\nto the tax liens. Sanchez agreed to wait and see. He considered the liens a “gating\n\nissue” that had to be resolved before the loan could be closed. Waters’ attorney,\n\nDavid Gentry, understood that. Because he did, on December 13, 2013, he sent the\n\nIRS Taxpayer Advocate a letter asking for approval of a payment plan and\n\nrequesting that the IRS provide “immediate assistance” so Waters could close the\n\nloan with Colony by December 18.\n\n\n\n 1\n Those liens were for $32,917.77 from tax year 2007; $37,109.61 from 2008; $68,111.60\nfrom 2009; and $328,656.00 from 2010, for a total of $466,794.98.\n\n\n 5\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 6 of 32\n\n\n Also on December 13, Waters himself called his Congressman’s office to\n\nask for help getting the tax liens removed. The constituent services representative\n\ntold him that the lien removal process typically took 30–45 days, but that it would\n\ntake longer for him because the IRS had already closed for the holidays and would\n\nnot begin processing any new requests until January. Waters told the\n\nrepresentative to send the request to the IRS anyway, which she did.\n\nParaskevidekatriaphobics would note that December 13 was a Friday.\n\n The following Monday, December 16, Waters emailed Gentry a letter that\n\nseemed to be from the IRS. It was also dated December 16, 2013, and appeared to\n\nbe on “Department of the Treasury: Internal Revenue Service” letterhead and bore\n\nthe seal of the IRS Office of the Chief Counsel. It stated in full:\n\n December 16, 2013\n\n VIA US MAIL AND FACSIMILE\n\n Re: Case No. 5684374\n\n Dear Taxpayers:\n\n We are in receipt of your letter submitted to us by the office of The\n Honorable Hank Johnson, Member, U.S. House of Representative[s]\n regarding Case No. 5684374 dated December 13, 2013.\n\n The letter dated December 13, 2013 referencing Financial Hardship —\n Immediate Assistance needed was a request to expedite your form\n 433A which was received in our office December 2, 2013.\n\n In accordance with Section 5.14.2.1 your request for Partial Payment\n Installment Agreement (PPIA) has been approved. A field\n\n 6\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 7 of 32\n\n\n representative will contact you in 60–90 days to discuss in further detail\n the financial agreement.\n\n I hope you find this letter helpful in the resolution of your immediate\n requirements. Please maintain copies of this letter for your permanent\n records.\n\n Sincerely,\n\n Rebecca Langford\n District Director\n\n Four minutes after receiving the letter, Gentry forwarded it to Colony’s\n\nattorney, Beau Baker, and asked if it resolved Colony’s concerns. It did not.\n\nBaker worried that the details of the IRS payment plan the letter referred to were\n\nmonths away, while the parties were trying to close the loan in the next couple of\n\nweeks. Sanchez, the senior vice president for Colony, also concluded that the\n\nletter was insufficient because it did not contain any specifics of the IRS payment\n\nplan.\n\n Then there was the question of authenticity. After talking with tax experts at\n\nhis law firm, Baker became concerned that the letter might not really be from the\n\nIRS at all. He did a Google search for “Rebecca Langford District Director” and\n\nlearned that the IRS had phased out the “District Director” position nine years\n\nbefore, sometime around 2004. Baker wrote to the IRS to verify the letter, and\n\nTony Baldwin, the initial mortgage broker, asked Waters if he had the contact\n\n\n\n\n 7\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 8 of 32\n\n\ninformation for Rebecca Langford. Waters responded that he did not.\n\nUndeterred, Waters sent this letter to Baldwin, Gentry, and Selevan:\n\n December 30, 2013\n\n RE: IRS Letter\n\n To Whom It May Concern:\n\n To the best of my knowledge the letter from Rebecca Langford IRS\n District Director and dated December 16 2013 with the subject matter\n “Partial Payment Installment Agreement” is from Rebecca Langford\n IRS District Director.\n\n A copy of the letter is attached to this email. Thank you.\n\n Kind Regards,\n\n Al Waters\n\n Waters’ letter didn’t appease Colony. A few days into the new year, in\n\nresponse to an email from Baldwin that the delay in financing was putting Waters\n\n“in a very bad position,” Sanchez (the Colony VP) emailed Baldwin, Waters, and\n\nothers working on the deal: “With all due respect, we were not expecting to deal\n\nwith IRS liens in the hundreds of thousands of dollars with no plan in place. I am\n\nnot comfortable with a ‘to be determined’ plan with no clear documentation.”\n\nSanchez later testified that the tax liens were “absolutely critical things to resolve\n\nbefore . . . getting even close to approving this loan for closing.”\n\n It turned out, of course, that the IRS letter was “outrageously bogus,” as\n\nWaters’ trial attorney would later put it. Nobody at the IRS had approved a\n\n 8\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 9 of 32\n\n\npayment plan for Waters; the IRS Office of Chief Counsel did not have district\n\ndirectors in 2013; and there was no one at the IRS named Rebecca Langford. The\n\nletter was as phony as Piltdown Man, although it did not take forty-one years to\n\ndisprove. Baker soon confirmed that the letter was false, and Colony killed the\n\ntransaction in January 2014. Waters eventually got a loan from a different lender.\n\nThat was not all he got.\n\n B. Trial And Sentencing\n\n Waters also got indicted on two counts of wire fraud in violation of 18\n\nU.S.C. § 1343. One count was for sending the fraudulent IRS letter and the other\n\none was for sending the email stating that letter was authentic. Waters pleaded not\n\nguilty and went to trial in November 2017. He moved for a judgment of acquittal\n\nat the conclusion of the government’s case in chief, arguing that there was\n\ninsufficient evidence for the jury to find that he had created the fraudulent\n\ndocuments and that, in any event, the deceptive documents were not material to the\n\nproposed loan agreement. The district court denied the motion and Waters failed\n\nto renew it at the end of his case.\n\n Waters did not testify at trial, but through his counsel he argued to the jury\n\nthat the prosecution had not proved beyond a reasonable doubt that Waters was\n\nresponsible for the false IRS letter or that he had intentionally lied in his email\n\nabout the letter. He also argued that the IRS letter wasn’t material to the loan\n\n\n\n 9\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 10 of 32\n\n\ntransaction because well into January 2014, a month after the IRS letter had been\n\ncirculated, the two mortgage brokers (Baldwin and Selevan) tried to find other\n\nways for Waters to pay off the tax liens and make the loan work.\n\n One issue that came up at trial was how to charge the jury on wire fraud.\n\nWaters requested a jury instruction on the difference between a scheme to deceive\n\nand a scheme to defraud based on this Court’s decision in United States v.\n\nTakhalov, 827 F.3d 1307, 1312–13 (11th Cir. 2016). He asked the judge to\n\ninstruct the jury that: “to defraud, one must intend to use deception to cause some\n\ninjury; but one can deceive without intending to harm at all”; and “if a Defendant\n\ndoes not intend to harm the victim — to obtain, by deceptive means, something to\n\nwhich the Defendant is not entitled — then he has not intended to defraud the\n\nvictim.” Doc. 45 at 12 (quoting Takhalov, 827 F.3d at 1312–13).\n\n The government opposed Waters’ proposed instruction as unnecessary and\n\nincomplete — unnecessary because the case was a “straightforward scheme to\n\ndefraud,” and incomplete because the proposed instruction did not instruct the\n\njurors how to tell if a scheme caused harm or not, which happened only if the lie\n\naffected the “nature of the bargain itself.” See Takhalov, 827 F.3d at 1313.\n\n The judge told the parties that he was not inclined to give Waters’ proposed\n\ninstruction, but that if he did give it, he would include an explanation about how to\n\ntell if the lie caused harm and affected the nature of the bargain itself. Waters did\n\n\n\n 10\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 11 of 32\n\n\nnot agree to that solution. 2 The judge then overruled Waters’ proposal and gave\n\nthe jury a charge based on the pattern instruction, without any language about the\n\ndifference between defrauding and deceiving. See Pattern Crim. Jury Instr. 11th\n\nCir. OI O51 (2016).3 The jury found Waters guilty on both counts of wire fraud.\n\n\n 2\n Here’s the exchange:\n\n The Court: I am not inclined to give [Waters’ proposed instruction], but if I did\n give it I would add the government’s instruction. How would you feel about that,\n Mr. Kish [the attorney for Waters]?\n\n Mr. Kish: Having never heard this until this moment, the government’s instruction,\n I would need to look at it. But my thinking is that the reason I structured my\n instruction in the manner in which I did was because it is the essence of the\n [Takhalov] decision, it is what the Court said the rule of law was. All of these\n examples —\n\n The Court: Read the instruction again, the proposed defendant’s instruction?\n\n Mr. Kish: I have just described what is needed to prove a scheme to defraud;\n however, quote, there is a difference between deceiving and defrauding. To\n defraud . . . one must intend to use deception to cause some injury. But one can\n deceive . . . without intending to harm at all. Put another way, one who defrauds\n always deceives, but one can deceive without defrauding. A defendant schemes to\n defraud only if he schemes to deprive someone of something of value by trick,\n deceit, chicane, or over-reaching. . . . But if a defendant does not intend to harm\n the victim to obtain by deceptive means something to which the defendant is not\n entitled, then he has not intended to defraud the victim. Furthermore, a schemer\n who tricks someone into a transaction has not schemed to defraud so long as he\n does not intend to harm the person he intends to trick. And this is so, even if the\n transaction would not have occurred but for the trick. For if there is no intent to\n harm, there can only be a scheme to deceive, but not one to defraud.\n\n The Court: I think that is overly confusing, and the subject is adequately covered\n by the charge as given now. So I respectfully overrule the defendant’s request for\n inclusion of his proposed charge no. 9.\n\n(Italics omitted.)\n 3\n This is the charge the district court gave:\n\n\n\n\n 11\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 12 of 32\n\n\n\n\n It is a federal crime to use interstate wire, radio, or television\ncommunications to carry out a scheme to defraud someone else. The defendant can\nbe found guilty of this crime only if all the following facts are proved beyond a\nreasonable doubt. One, the defendant knowingly devised or participated in a\nscheme to defraud, or to obtain money or property by using false pretenses,\nrepresentations, or promises. Two, the false pretenses, representations, or promises\nwere about a material fact. Three, the defendant acted with the intent to defraud.\nAnd four, defendant transmitted or caused to be transmitted, by wire or some\ncommunication in interstate commerce, to help carry out the scheme to defraud.\n\n The phrase scheme to defraud includes any plan or course of action intended\nto deceive or cheat someone out of money or property by using false or fraudulent\npretenses, representations, or promises. A statement or representation is false or\nfraudulent if it is about a material fact that the speaker knows is untrue, or makes\nwith reckless indifference to the truth, and makes with the intent to defraud. A\nstatement or representation may be false or fraudulent when it is a half truth, or\neffectively conceals a material fact, and is made with the intent to defraud.\n\n A material fact is an important fact that a reasonable person would use to\ndecide whether to do or not do something. A fact is material if it has the capacity\nor natural tendency to influence a person’s decision. It doesn’t matter whether the\ndecision maker actually relied on the statement or knew or should have known that\nthe statement was false; however, not all misrepresentation or omissions constitute\na scheme to defraud. The misrepresentation or omission must be material, and it\nmust be one on which a person of ordinary prudence would rely.\n\n The intent to defraud is the specific intent to deceive or cheat someone,\nusually for personal financial gain or to cause financial loss to someone else. To\nprove intent, the government must establish that the defendant believed that the\nsupposed victim would act or refrain from acting in reliance upon that\nrepresentation. The government does not have to prove all of the details alleged in\nthe indictment about the precise nature and purpose of the scheme. It also doesn’t\nhave to prove that the material transmitted by interstate wire was itself false or\nfraudulent, or that using the wire was intended as the specific or exclusive means\nof carrying out the alleged fraud, or that the defendant personally made the\ntransmission over the wire, and it doesn’t have to prove that the alleged scheme\nactually succeeded in defrauding anyone.\n\n\n\n\n 12\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 13 of 32\n\n\n Before sentencing, the probation office prepared a presentence report and\n\nrecommended the application of an 18-level enhancement under U.S.S.G.\n\n§ 2B1.1(b)(1)(J) for an intended loss amount of more than $3.5 million but less\n\nthan $9.5 million. That would have made Waters’ total offense level 25 and his\n\nguidelines range 57 to 71 months in prison. Waters objected to the enhancement\n\non the basis that there was no actual or intended loss. He pointed out that the\n\nbuilding, which was to serve as collateral for the loan, had been appraised in April\n\n2014 to be worth $8.4 million, $2.4 million more than the amount of the proposed\n\nloan from Colony. The government agreed that this meant the enhancement should\n\nnot apply. That concession brought Waters’ guidelines range down to zero to six\n\nmonths, and the district court sentenced him to six months in prison and one year\n\nof supervised release.\n\n Waters appeals his convictions and sentence. 4\n\n II. THE TAKHALOV ISSUES\n\n Waters contends that the district court abused its discretion by not giving his\n\nproposed jury instruction on the difference between fraud and deceit. He also\n\ncontends that there was insufficient evidence for the jury to find him guilty of wire\n\nfraud because the government did not show that he intended to harm Colony. Both\n\ncontentions rely on our decision in Takhalov. Since that case came out, a judge of\n\n\n 4\n Waters is currently out on bond and has not begun serving his sentence.\n\n\n 13\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 14 of 32\n\n\nour Court has questioned some of the statements in that opinion. See United States\n\nv. Feldman, 931 F.3d 1245, 1265–74 (11th Cir. 2019) (W. Pryor, J., concurring).\n\nWe need not get into that here. Even assuming that every statement in our\n\nTakhalov opinion is correct, this case is distinguishable.\n\n A. The Takhalov Case\n\n The federal wire fraud statute makes criminal any “scheme or artifice to\n\ndefraud.” 18 U.S.C. § 1343. The statute does not define what that is, but we have.\n\nSee United States v. Bradley, 644 F.3d 1213, 1239–40 (11th Cir. 2011). And one\n\nthing we’ve recognized, tautologically perhaps, is that to be convicted under the\n\n§ 1343 fraud statute a defendant’s “scheme must be a scheme to defraud rather\n\nthan to do something other than defraud.” Takhalov, 827 F.3d at 1312. What is\n\nessential to a scheme to defraud is a question we confronted in Takhalov.\n\n The Takhalov defendants were a group of bar owners who had hired women\n\nto pose as tourists and lure visiting businessmen into the defendants’ bars and\n\nnightclubs. Id. at 1310. Then bartenders at the clubs would trick the unsuspecting\n\nbusinessmen into buying ridiculously overpriced alcohol by misrepresenting the\n\nprices of drinks or forging the men’s signatures on their credit card receipts. See\n\nid. at 1310–11. The defendants admitted that they had hired the “B-girls” to lure\n\nthe men into the clubs and that the women did not tell the men that they had been\n\nhired to do so. Id. But the defendants denied knowing about the fraud that took\n\n\n\n 14\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 15 of 32\n\n\nplace once the men went into the clubs. Id. The defendants claimed that as far as\n\nthey knew, once the men came to the clubs they “got what they paid for.” Id. at\n\n1311.\n\n The Takhalov defendants asked the district court to instruct their jury that\n\n“failure to disclose the financial arrangement between the B-girls and the Bar, in\n\nand of itself, is not sufficient to convict a defendant” of wire fraud. Id. at 1314\n\n(brackets and quotation marks omitted). The district court refused to give that\n\ninstruction, the government argued that the jury could return a verdict based on\n\nthat initial trickery alone, and the jury did. Id. at 1310–11. We reversed the\n\ndefendants’ convictions. Id. at 1324.\n\n Our reasoning proceeded in three main steps. First, we noted that “there is a\n\ndifference between deceiving and defrauding: to defraud, one must intend to use\n\ndeception to cause some injury; but one can deceive without intending to harm at\n\nall.” Id. at 1312. Second, that distinction meant that “if a defendant does not\n\nintend to harm the victim — to obtain, by deceptive means, something to which the\n\ndefendant is not entitled — then he has not intended to defraud the victim.” Id. at\n\n1313 (brackets and quotation marks omitted). And third, “[f]rom that conclusion, a\n\ncorollary follows: a schemer who tricks someone to enter into a transaction has not\n\n‘schemed to defraud’ so long as he does not intend to harm the person he intends to\n\ntrick.” Id. “[T]his is so,” we said, “even if the transaction would not have\n\n\n\n 15\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 16 of 32\n\n\noccurred but for the trick. For if there is no intent to harm, there can only be a\n\nscheme to deceive, but not one to defraud.” Id.\n\n To tell the difference between a scheme to deceive and a scheme to defraud,\n\nwe instructed courts to look at “the nature of the bargain itself.” Id. at 1313. And\n\na lie about the nature of the bargain can take two primary forms. Id. First, “the\n\ndefendant might lie about the price (e.g., if he promises that a good costs $10 when\n\nit in fact costs $20).” Id at 1313–14. Or second, “he might lie about the\n\ncharacteristics of the good (e.g., if he promises that a gemstone is a diamond when\n\nit is in fact a cubic zirconium).” Id. at 1314. “In each case, the defendant has lied\n\nabout the nature of the bargain and thus in both cases the defendant has committed\n\nwire fraud.” Id.\n\n By contrast, we explained, “if a defendant lies about something else — e.g.,\n\nif he says that he is the long-lost cousin of a prospective buyer — then he has not\n\nlied about the nature of the bargain, has not ‘schemed to defraud,’ and cannot be\n\nconvicted of wire fraud on the basis of that lie alone.” Id. And that is so even if\n\nthe buyer would not have bought anything but for the lie. Id. (citing United States\n\nv. Shellef, 507 F.3d 82, 108 (2d Cir. 2007) (drawing “a fine line between schemes\n\nthat do no more than cause their victims to enter into transactions that they would\n\notherwise avoid — which do not violate the mail or wire fraud statutes — and\n\nschemes that depend for their completion on a misrepresentation of an essential\n\n\n\n 16\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 17 of 32\n\n\nelement of the bargain — which do violate the mail and wire fraud statutes”);\n\nUnited States v. Starr, 816 F.2d 94, 98 (2d Cir. 1987) (“Misrepresentations\n\namounting only to a deceit are insufficient to maintain a mail or wire fraud\n\nprosecution. Instead, the deceit must be coupled with a contemplated harm to the\n\nvictim . . . affect[ing] the very nature of the bargain itself.”) (internal quotation\n\nmarks omitted); United States v. Regent Office Supply Co., 421 F.2d 1174, 1182\n\n(2d Cir. 1970) (“[W]e conclude that the defendants intended to deceive their\n\ncustomers but they did not intend to defraud them, because the falsity of their\n\nrepresentations was not shown to be capable of affecting the customer’s\n\nunderstanding of the bargain nor of influencing his assessment of the value of the\n\nbargain to him, and thus no injury was shown to flow from the deception.”).\n\n B. The District Court’s Jury Instructions\n\n With that background in mind, we turn to Waters’ contention that the district\n\ncourt erred by refusing to give his Takhalov-based jury instruction. We review\n\nthat decision only for an abuse of discretion. United States v. Dohan, 508 F.3d\n\n989, 993 (11th Cir. 2007). “The failure of a district court to give an instruction is\n\nreversible error where the requested instruction (1) was correct, (2) was not\n\nsubstantially covered by the charge actually given, and (3) dealt with some point in\n\nthe trial so important that failure to give the requested instruction seriously\n\n\n\n\n 17\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 18 of 32\n\n\nimpaired the defendant’s ability to conduct his defense.” United States v.\n\nEckhardt, 466 F.3d 938, 947–48 (11th Cir. 2006).\n\n Waters requested that the district court give this instruction:\n\n I have just described what is needed to prove a scheme to\n defraud. However, there is a difference between deceiving and\n defrauding; to defraud, one must intend to use deception to cause some\n injury; but one can deceive without intending to harm at all. Put another\n way, one who defrauds always deceives, but one can deceive without\n defrauding.\n\n A Defendant schemes to defraud only if he schemes to deprive\n someone of something of value by trick, deceit, chicane or\n overreaching. But if a Defendant does not intend to harm the\n victim — to obtain, by deceptive means, something to which the\n Defendant is not entitled — then he has not intended to defraud the\n victim.\n\n Furthermore, a schemer who tricks someone to enter into a\n transaction has not schemed to defraud so long as he does not intend to\n harm the person he intends to trick. And this is so even if the transaction\n would not have occurred but for the trick. For if there is no intent to\n harm, there can only be a scheme to deceive, but not one to defraud.\n\n(Alterations and quotation marks omitted).\n\n The district court did not abuse its discretion when it refused to give that\n\ninstruction. Though composed of quotations from our opinion in Takhalov,\n\nWaters’ “proposed instruction was an incomplete statement of the law and would\n\nhave confused the jury.” United States v. Solomon, 686 F.2d 863, 876 (11th Cir.\n\n1982). The proposal emphasized the requirement that a defendant have the intent\n\nto harm, but it never defined what harm meant. And it introduced the distinction\n\n\n\n 18\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 19 of 32\n\n\nbetween a scheme to deceive and a scheme to defraud, but it didn’t tell the jurors\n\nhow to tell the difference between them. Without those tools the jury could hardly\n\nhave been expected to apply our Takhalov decision correctly.\n\n The government pointed all of that out at the charge conference when it\n\nasked the district court to supply the missing link in Waters’ instruction. The\n\nadditional language proposed by the government would have instructed the jury\n\nthat “[t]he ‘scheme to defraud,’ as that phrase is used in the wire fraud statute,\n\nrefer[s] only to those schemes in which a defendant lies about the nature of the\n\nbargain itself.” Doc. 89 at 5–6 (quoting Takhalov, 827 F.3d at 1313). That\n\naddition would have enabled the jurors to tell the difference between the two kinds\n\nof schemes because it would have defined for them what “harm” means. To recap:\n\nIn a scheme to deceive, the victim of the lie hasn’t been harmed because he still\n\nreceived what he paid for. But in a scheme to defraud, the victim has been harmed\n\nbecause the misrepresentation affected the nature of the bargain, either because the\n\nperpetrator lied about the value of the thing (for example, promising something\n\ncosts $10 when it actually costs $20), or because he lied about the thing itself (for\n\nexample, promising a gemstone is a diamond when it is actually a cubic\n\nzirconium). Takhalov, 827 F.3d at 1313–14. Either way, though, the victim didn’t\n\nget what he paid for.\n\n\n\n\n 19\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 20 of 32\n\n\n By not including that distinction, and then not accepting the government’s\n\nproposal to add it, Waters asked the court to give an incomplete and misleading\n\njury instruction. The court did not abuse its discretion when it deemed the\n\ninstruction “overly confusing.” See United States v. Cooper, 926 F.3d 718, 736\n\n(11th Cir. 2019) (affirming district court’s rejection of a defendant’s proposed\n\ninstruction “because it was misleading and confusing”) (quotation marks omitted);\n\nUnited States v. Silverman, 745 F.2d 1386, 1396 (11th Cir. 1984) (noting that a\n\ndistrict court “is bound to refuse a requested instruction that is incomplete,\n\nerroneous, or misleading”).\n\n Waters’ argument also fails for another reason. Unlike in Takhalov, his\n\nproposed jury instruction did not concern a “point in the trial so important that\n\nfailure to give the requested instruction seriously impaired [his] ability to conduct\n\nhis defense.” Eckhardt, 466 F.3d at 947–48. Recall that Waters had two main\n\ntheories at trial. The first was that he didn’t create the IRS letter and didn’t know it\n\nwas fake when he sent it to Colony. The district court’s refusal to give the\n\nproposed instruction did not impact the presentation of that theory at all.\n\n Waters’ second theory was that the IRS letter “didn’t matter” because the\n\n“deal was going forward with or without that letter.” His attorney made the point\n\nthis way in his closing argument:\n\n Did the Langford letter even make any difference, considering what\n happened over the course of time? We will go over it again, but I think\n\n 20\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 21 of 32\n\n\n we pretty well established this at trial. . . . After the Rebecca Langford\n letter is sent on [December] 16th, minutes later, Larry Selevan,\n chomping at the bit, says, well, good enough for me. I am ready to go.\n Nobody cared about the Rebecca Langford Letter. Nobody cared about\n the taxes. . . . The Langford letter didn’t mean squat. And the reason\n it didn’t mean squat is because of what the witnesses told you. We\n wanted the deal to finalize. . . . Nobody worried about whether the\n Rebecca Langford letter was authentic. To use the words of the\n lawyers, it has to be material. It has to be important. It was not\n important.\n\n As Waters’ attorney told the jury, that is an argument about materiality. The\n\njudge explicitly defined that term for the jurors (“A material fact is an important\n\nfact that a reasonable person would use to decide whether to do or not do\n\nsomething”) and instructed them that to be guilty of wire fraud Waters must have\n\nomitted or misrepresented a fact that was material. See Pattern Crim. Jury Instr.\n\n11th Cir. OI O51 (2016). So when Waters argued that the false IRS letter was not\n\nmaterial because the deal was going forward “with or without that letter,” and\n\nwhen he said that the letter did not concern a material fact because “nobody cared\n\nabout the taxes,” his arguments were in accord with the court’s instructions. Of\n\ncourse, the deal did not go forward “with or without that letter” and that may be\n\none reason the jury rejected his argument. But the jury’s rejection of Waters’\n\ntheory does not mean he was “seriously impaired” in his ability to present that\n\ntheory to the jury. Eckhardt, 466 at 948. He wasn’t.\n\n This is materially different from what happened in Takhalov. Unlike in\n\nWaters’ case, the jury instruction the Takhalov defendants requested was integral\n\n 21\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 22 of 32\n\n\nto their argument. Their argument did not hinge on whether the businessmen still\n\nwould have gone into the clubs had they known of the true relationship between\n\nthe B-Girls and the bar owners. See 827 F.3d at 1310–11. Instead, the defendants\n\nargued that their concealment of their relationship with the B-Girls did not\n\nconstitute wire fraud, regardless of whether that concealment was material to the\n\nbusinessmen’s decisions to enter the clubs. That is why the defendants asked for\n\nthis jury instruction: “Failure to disclose the financial arrangement between the B-\n\nGirls and the Bar, in and of itself, is not sufficient to convict a defendant of any\n\noffense.” Id. at 1311 (alterations omitted). The Takhalov defendants did not get to\n\npresent their theory to the jury because the district court rejected their proposed\n\njury instruction that would have put that theory before the jury. As we explained,\n\n“[w]ithout an instruction supporting the defendants’ theory, the jury was not\n\nrequired to believe this theory . . . [and] the jury could believe what the\n\ngovernment argued in its closing: that the concealment was material and the\n\ndefendants acted with the intent to deceive or cheat the victims.” Id. at 1322–23.\n\n By contrast, Waters’ proposed jury instruction on the difference between\n\nfraud and deceit did not propose either of his two defense theories. As a result, the\n\nrejection of his jury instruction did not impair his presentation of a defense theory.\n\nSee Eckhardt, 466 F.3d at 947–48 (holding that defendant accused of violating the\n\nCommunications Decency Act was not impaired by trial court’s refusal to alter its\n\n\n\n 22\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 23 of 32\n\n\njury instruction defining what constituted an “obscene” phone call because\n\ndefendant’s theory of the case was that he did not make the alleged phone calls).\n\nNor did Waters change a theory at trial in response to the court’s rejection of his\n\nproposed jury instruction, as the Takhalov defendants did. Not until Waters got to\n\nthis Court did he argue that his misrepresentations weren’t wire fraud because they\n\ndid not affect the bargain between the parties. (More on that argument below.) He\n\ndid not consent to the government’s proposed instruction that would have\n\ninstructed the jury on that very topic. Given all of that, the district court did not\n\nabuse its discretion when it declined to give Waters’ proposed jury instruction.5\n\n C. Sufficiency Of The Evidence\n\n We turn now to Waters’ second Takhalov-based argument: that the district\n\ncourt should have granted his motion for a judgment of acquittal because there was\n\ninsufficient evidence that he intended to harm Colony. “Ordinarily, we review de\n\nnovo whether sufficient evidence supports a conviction, viewing the evidence and\n\ntaking all reasonable inferences in favor of the jury’s verdict.” United States v.\n\nFries, 725 F.3d 1286, 1291 (11th Cir. 2013). But Waters did not renew his motion\n\n\n 5\n One side point is worth addressing. At the final charge conference Waters argued that\nhis proposed jury instruction was needed “[b]ecause there is the chance that jurors could think\nthat . . . the failure to include all of the tax liens on . . . the personal financial statement by itself\nwould be sufficient to show fraud.” By not raising this point on appeal Waters has abandoned\nany argument that the jury found him guilty based on the false financial statement instead of the\nfraudulent IRS letter and the email Waters sent affirming the IRS letter. See AT&T Broadband\nv. Tech Commc’ns, Inc., 381 F.3d 1309, 1320 n.14 (11th Cir. 2004) (“Issues not raised on appeal\nare considered abandoned.”).\n\n\n 23\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 24 of 32\n\n\nfor acquittal at the close of all the evidence or present to the district court his\n\ncurrent theory of why there was insufficient evidence for the jury to find him\n\nguilty. Because of his failure to renew the motion, “we will reverse [his]\n\nconviction only where doing so is necessary to prevent a manifest miscarriage of\n\njustice.” Id. (quotation marks omitted). Which means only if we find “either that\n\nthe record is devoid of evidence of an essential element of the crime or that the\n\nevidence on a key element of the offense is so tenuous that a conviction would be\n\nshocking.” Id. (quotation marks omitted).\n\n Relying on Takhalov, Waters argues that the tax liens were peripheral to the\n\nproposed loan transaction and, as a result, any lies about those liens (including the\n\nletters he sent about the make-believe payment plan with the IRS) could not\n\nconstitute wire fraud because they did not affect the bargain between the parties.\n\nThis is basically a repackaging of his jury charge argument, but with a twist: it\n\nrelies on the law in the instruction proposed by the government instead of the\n\ninstruction he suggested.\n\n In Waters’ telling, the tax liens merely “went to the integrity of\n\nmanagement,” and the projected cash flow from the new medical building formed\n\nthe heart of the bargain. He says that cash flow combined with the $2.4 million\n\n“over-collateralization” of the building itself “ensured repayment of the requested\n\n\n\n\n 24\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 25 of 32\n\n\nLoan in full.” And, as a result, “the removal of [the] tax liens was not ‘part of the\n\nbargain.’”\n\n The jurors heard plenty of evidence that would cause them to disbelieve that\n\ntheory. For example, Sanchez, Colony’s senior vice president, called the discovery\n\nof the tax liens “a deal killer” because he did not “want[] to close a transaction\n\nwith the[] outstanding liens.” And even after the folks at Chesterfield Faring\n\nconvinced Sanchez not to walk away from the deal when he first learned of the\n\nliens, he still considered the tax liens a “gating issue” that had to be resolved\n\nbefore he would consider making the loan. As he testified at trial: The liens were\n\n“absolutely critical things to resolve before . . . getting even close to approving\n\nth[e] loan for closing.”\n\n Colony’s attorney, Beau Baker, testified to much the same thing. Once he\n\ndiscovered that the tax liens existed, he stopped working on the due diligence and\n\ndocumentation for the loan until the liens could be resolved. He explained to the\n\njury: “[I]f there is a creditor out there, especially a super creditor like the Internal\n\nRevenue Service, that creditor could come after your borrower later on or come\n\nafter the guarantor, and that could put the payment stream that is coming to my\n\nclient in jeopardy.” The attorney representing Waters in the deal, David Gentry,\n\nalso understood that Colony “required either the tax liens get paid off or that some\n\n\n\n\n 25\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 26 of 32\n\n\nsort of payment plan be in place with the IRS to pay it off over time” before the\n\nloan could be closed.\n\n To all of that, Waters says: Doesn’t matter. He argues that Takhalov teaches\n\nthat there’s a difference between a scheme to deceive and a scheme to defraud.\n\nAnd he says defrauding means that the material misrepresentation must affect the\n\nnature of the bargain and not something else. Waters points to Takhalov’s\n\nreasoning that “even if the transaction would not have occurred but for the trick,”\n\nTakhalov, 827 F.3d at 1313, “a wire-fraud case must end in an acquittal if the jury\n\nnevertheless believes that the alleged victims [would have] received exactly what\n\nthey paid for,” id. at 1314 (quotation marks omitted). Purporting to apply that\n\nreasoning here, Waters argues that his case should have ended in an acquittal\n\nbecause, as the government itself conceded at sentencing, the collateral was worth\n\n$2.4 million more than the amount of the loan.\n\n There are three reasons why Waters’ conclusion does not follow from his\n\npremise. The first is that it misconstrues the nature of the bargain with Colony. As\n\nthe government persuasively points out, the bargain was not for Colony to be\n\nsucked into a time-consuming and expensive foreclosure to mitigate its losses if\n\nWaters was unable to make the payments on the loan. The bargain was to make a\n\nsolid loan in the first place and to receive loan payments without the threat of\n\noutstanding tax liens getting in the way.\n\n\n\n 26\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 27 of 32\n\n\n That theory was supported by lots of testimony at trial. It’s why Sanchez\n\ndescribed the tax liens as a “gating issue,” and why Baker told the jury that he was\n\nworried about the liens because they “could put the payment stream that [was]\n\ncoming to [Colony] in jeopardy.” So the jury was free to conclude that Waters’\n\ncreditworthiness, as the guarantor of the loan with Sondial, affected the value of\n\nthe transaction and was part of the bargain itself. See United States v. Appolon,\n\n715 F.3d 362, 368–69 (1st Cir. 2013) (holding that misrepresentations in loan\n\napplications used “to assess [a] borrower’s creditworthiness” were material\n\nbecause they were “capable of influencing [the lender’s] decision”) (quotation\n\nmarks omitted); see also United States v. Rossomando, 144 F.3d 197, 201 (2d Cir.\n\n1998) (“[W]here a defendant deliberately supplies false information to obtain a\n\nbank loan . . . the defendant’s good-faith intention to pay back the loan is no\n\ndefense because he intended to inflict a genuine harm upon the bank — i.e., to\n\ndeprive the bank of the ability to determine the actual level of credit risk and to\n\ndetermine for itself on the basis of accurate information whether, and at what price,\n\nto extend credit to the defendant.”) (footnote omitted).\n\n The second reason why the appraised value of the collateral exceeding the\n\namount of the loan does not render the misrepresentations about the tax liens\n\nimmaterial is that the appraisal of the collateral did not exist until after the deal\n\nwith Colony fell through. Waters’ misrepresentations to Colony about the tax liens\n\n\n\n 27\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 28 of 32\n\n\noccurred in December of 2013. Colony learned in late January of 2014 that the\n\nletter from the IRS was fake. It was at that point that Colony walked away from\n\nthe deal for good. Waters then courted another company for the loan, and it was\n\nthat other company, Thorofare, that had the property appraised in April of 2014.\n\nThe appraisal did not exist when Waters misrepresented the facts about the tax\n\nliens, when Colony was considering Waters’ loan application, when Colony\n\ndiscovered the misrepresentations, or when it walked away. Something that did\n\nnot exist at the time of the fraud cannot evidence a lack of intent to defraud.\n\n The third reason why the appraisal cannot figure into the sufficiency of the\n\nevidence to prove intent to defraud is that sufficiency is judged based only on the\n\nevidence before the jury. When deciding whether there was sufficient evidence to\n\nconvict, we may not consider evidence the jury never heard. See United States v.\n\nDeSimone, 660 F.2d 532, 538–39 (5th Cir. Unit B Nov. 1981). No evidence of the\n\nappraisal was ever put before the jury. None. The first time it was mentioned was\n\nin Waters’ sentencing memoranda, six months after the jury had returned its\n\nverdict and gone home. That was six months too late.\n\n III. THE OTHER ISSUES\n\n Waters has two more contentions, neither of which has merit. First, he\n\ncontends that the district court committed reversible error by not making an “on-\n\n\n\n\n 28\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 29 of 32\n\n\nthe-record waiver inquiry” about his decision not to testify at trial. 6 Waters was\n\nrepresented by an able defense attorney whom the trial judge complimented several\n\ntimes for doing a good job. And Waters acknowledges that there is no “per se\n\nrequirement that the district court advise the defendant of his right to testify and\n\nconduct an on-the-record inquiry into whether a non-testifying defendant\n\nknowingly, voluntarily, and intelligently waived the right to testify.” United States\n\nv. Van De Walker, 141 F.3d 1451, 1452 (11th Cir. 1998). So why does he contend\n\nthat the district court committed reversible error? Because he was the “only person\n\nin a position to refute the prosecution’s case,” thereby making his situation\n\n“exceptional.”\n\n\n\n 6\n The parties disagree about what standard of review applies to this claim. The\ngovernment argues that plain error review applies because Waters did not object at trial, and that\nseems right. But Waters relies on our decision in United States v. Hung Thien Ly, 646 F.3d\n1307, 1318 (11th Cir. 2011), to argue that the standard of review is “unsettled” and that\nstructural error analysis may apply.\n In Hung Thien Ly, the pro se defendant failed to object at trial to the district court’s\nfailure to correct his misunderstanding of his right to testify. We rejected the government’s\nargument that we should review only for plain error. Id. at 1312 & n.5. We explained: “The\nGovernment contends that plain-error review must apply because Ly never objected to the\ndistrict court’s alleged denial of his right to testify. In the context of Ly’s claim, this argument is\nabsurd. Ly’s argument on appeal is that his confusion regarding his right to testify was so\napparent during the court-initiated colloquy that the district court was obligated to correct his\nmisunderstanding. By definition, Ly could not have objected to the district court’s actions, for\nhis claim lies in his ignorance of the law.” Id. at 1312 n.5. Looking at the issue de novo, we\nheld that the district court had erred by not correcting the pro se defendant’s misunderstanding of\nhis right to testify, and then we assumed without deciding that harmless-error analysis applied\nand held that the error was harmful. Id. at 1318.\n There are significant differences between this case and Hung Thien Ly. The most\nobvious of them is that Waters was represented by able counsel while the defendant in Hung\nThien Ly had no counsel. But even if we assume that de novo review applies, Waters still cannot\nprevail on his claim that the district court should have inquired about his decision not to testify.\n\n\n 29\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 30 of 32\n\n\n We don’t accept that as a ground for relief. While being in a position to\n\nrefute the prosecution’s case may have been a good reason for Waters to take the\n\nstand (though we doubt it’s all that “exceptional”), it certainly isn’t enough to\n\nestablish that his decision not to testify was unknowingly and unintelligently made.\n\nSee Hung Thien Ly, 646 F.3d at 1317 (“[A]bsent evidence to the contrary, district\n\ncourts should presume that the defendant, even a pro se defendant, has made a\n\nknowing and intelligent decision about whether to testify.”).\n\n Second, Waters also contends that the district court made an erroneous\n\nfactual finding that impacted his sentence. We normally review the procedural\n\nreasonableness of a sentence under an abuse-of-discretion standard, and a court\n\nabuses its discretion if it “select[s] a sentence based on clearly erroneous facts.”\n\nGall v. United States, 552 U.S. 38, 51 (2007). Because Waters did not object at the\n\nsentence hearing, however, we review the alleged error only for plain error. See\n\nUnited States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014) (using plain\n\nerror review because defendant failed to object on procedural reasonableness\n\ngrounds at sentencing). “Under plain error review, we can correct an error only\n\nwhen (1) an error has occurred, (2) the error was plain, (3) the error affected\n\nsubstantial rights, and (4) the error seriously affects the fairness, integrity or public\n\nreputation of judicial proceedings.” Dupree v. Warden, 715 F.3d 1295, 1301 (11th\n\nCir. 2013).\n\n\n\n 30\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 31 of 32\n\n\n Waters’ contention is based on a comment the judge made at the end of the\n\nsentence hearing, after he had announced Waters’ six-month sentence:\n\n I don’t think this man is ever going to commit another crime. It\n may not feel like it, but he got a break. I mean, what a break. If that\n loan had not been repaid, we are looking at about a five-year sentence,\n so he got that break.\n\n That was a misstatement. Waters had not paid back a loan to Colony\n\nbecause there never was a loan from Colony to repay. But Waters has not shown\n\nthat the misstatement constituted a clearly erroneous factual finding because he has\n\nnot shown that it was a factual finding at all. Earlier in the hearing the district\n\ncourt formally adopted the unobjected-to factual findings in the PSR. Those\n\nfindings made clear that although Waters had applied for a loan from Colony, he\n\nhad not received one. The judge said that the fact that Colony had not lost any\n\nloaned money “ma[de] a big difference” for sentencing purposes. That is literally\n\ntrue. Viewed in this context, we can’t say that the judge’s slip up about the loan\n\nhaving been repaid — as opposed to never having been made — was a relevant\n\nfact finding instead of a stray comment at the end of a long hearing. And it is one\n\nto which there was no objection.\n\n Even if we were to consider the comment a clearly erroneous factual finding,\n\nWaters has still not shown that it affected his sentence, as required to establish\n\nplain error. See Vandergrift, 754 F.3d at 1312 (“In order for an error to have\n\naffected substantial rights, it must have affected the outcome of the district court\n\n 31\n\f Case: 18-11333 Date Filed: 09/10/2019 Page: 32 of 32\n\n\nproceedings.”) (quotation marks omitted). According to Waters, the misstatement\n\naffected his sentence because it showed that the judge “did not believe that [he]\n\ndeserved any leniency because he already had received the benefit of the Loan\n\nbeing repaid.” But the judge himself gave three reasons for why he thought that\n\nWaters did deserve leniency: (1) there was no economic harm to Colony,\n\n(2) Waters’ conduct had otherwise been lawful and upstanding, and (3) Waters had\n\na lot of community support. Not only that, but after the judge had commented at\n\nthe beginning of the sentence hearing that he did not think that the government’s\n\nproposed sentence of a year and a day would be long enough, he ended up\n\nsentencing Waters to only six months. That indicates the judge had an open mind\n\nand gave consideration to Waters’ arguments at sentencing. Waters’ speculation\n\nabout a single comment that the judge made after he had imposed the sentence is\n\nnot enough to show that it affected Waters’ sentence.\n\n AFFIRMED.\n\n\n\n\n 32\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Alphonso I. Waters, Jr.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-09-10\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-11333 Date Filed: 09/10/2019 Page: 1 of 32\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-11333\\n ________________________\\n\\n D.C. Docket No. 1:16-cr-00407-TCB-JSA-1\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellee,\\n\\n versus\\n\\nALPHONSO I. WATERS, JR.,\\n\\n Defendant-Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Northern District of Georgia\\n ________________________\\n\\n (September 10, 2019)\\n\\nBefore ED CARNES, Chief Judge, JULIE CARNES, and CLEVENGER,∗ Circuit\\nJudges.\\n\\nED CARNES, Chief Judge:\\n\\n ∗ Honorable Raymond C. Clevenger, III, United States Circuit Judge for the Federal\\nCircuit, sitting by designation.\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 2 of 32\\n\\n\\n In this wire fraud case, we are once again confronted with the question of\\n\\nwhen a lie is just a lie and when it is a federal crime. “It is conceded that there is a\\n\\nclass of lies, voluntary, aimless, yet weak and wicked lies,” Green’s Adm’r v.\\n\\nBryant, 2 Ga. 66, 68 (1847), that our law does not forbid. And the federal wire\\n\\nfraud statute “forbids only schemes to defraud, not schemes to do other wicked\\n\\nthings, e.g., schemes to lie, trick, or otherwise deceive.” United States v.\\n\\nTakhalov, 827 F.3d 1307, 1310 (11th Cir.), as revised (Oct. 3, 2016), opinion\\n\\nmodified on denial of reh’g, 838 F.3d 1168 (11th Cir. 2016). “The difference,” we\\n\\nhave explained, “is that deceiving does not always involve harming another\\n\\nperson; defrauding does.” Id.\\n\\n Alphonso Waters, Jr., relies on that distinction to argue that the lies he told\\n\\nin the process of obtaining a $6 million loan did not amount to fraud. He sought\\n\\nthat loan in 2013 from a private lender who discovered that Waters had several\\n\\nyears’ worth of federal tax liens outstanding. To calm the lender’s concerns,\\n\\nWaters sent it a letter that appeared to be from the IRS approving him for a\\n\\npayment plan to pay off the tax liens. Then he sent the lender another letter stating\\n\\nthat, as far as he knew, the first letter really was from the IRS. Both of those letters\\n\\nwere lies –– lock, stock, and barrel; stem to stern, top to bottom. But, Waters\\n\\nargues, they weren’t statutorily damned lies; they weren’t lies constituting wire\\n\\nfraud because they didn’t affect the bargain between the parties. He reasons that\\n\\n\\n\\n 2\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 3 of 32\\n\\n\\nany lie he told about his creditworthiness was harmless because the collateral for\\n\\nthe loan was worth $8.4 million, which is more than the total amount of the loan.\\n\\nWe are not convinced.\\n\\n I. BACKGROUND\\n\\n A. The Scheme\\n\\n Waters was the CEO of Family Practice of Atlanta, a medical practice he\\n\\nowned and operated with his wife, Dr. Sondi Moore-Waters, a physician. He ran\\n\\nthe business side of things, she ran the medical side. [Id.] Sometime around 2011\\n\\nthey decided they needed a bigger building for the growing practice. They formed\\n\\nSondial Properties, LLC (a portmanteau of the couple’s names, Sondi and Al), and\\n\\nthe company borrowed about $4 million in the form of two different construction\\n\\nloans from JP Morgan Chase Bank. Those loans matured on October 18, 2013,\\n\\nand Sondial immediately defaulted on them because of delays and cost overruns\\n\\nwith the construction.\\n\\n Waters sought the help of a commercial mortgage broker in finding a $6\\n\\nmillion transitional loan so he could pay back the $4 million to Chase and also\\n\\nfinish construction. Waters’ broker, Tony Baldwin, contacted Chesterfield Faring,\\n\\nLtd., a real estate services and investment firm that specialized in finding funding\\n\\nfor lapsing or lapsed loans. Chesterfield’s CEO was a man named Larry Selevan.\\n\\nSelevan and his company helped borrowers find loans by researching the financial\\n\\n\\n\\n 3\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 4 of 32\\n\\n\\nviability of a proposed project and packaging that information so potential lenders\\n\\ncould easily decide whether to provide financing.\\n\\n Selevan proposed the loan project to Colony Capital, LLC. Colony was a\\n\\nprivate equity firm and real estate investment trust that provided financing for\\n\\ncommercial realty projects deemed to exceed a bank’s normal risk profile.\\n\\nMichael Sanchez, the senior vice president of Colony, oversaw Sondial’s loan\\n\\napplication. He understood that the loan “had to be closed very quickly” so Waters\\n\\ncould pay off Chase and meet construction deadlines. On October 25, 2013,\\n\\nSanchez sent Chesterfield a term sheet outlining the terms and conditions that\\n\\nColony proposed for the loan. Under the proposal Colony would lend Sondial $6\\n\\nmillion and, in exchange, it would receive a first priority mortgage on the new\\n\\nbuilding and rights to all leases and rents there, as well as about a 7% interest rate\\n\\nfor the two-year initial term. Al Waters signed the term sheet on behalf of Sondial.\\n\\n With the terms of the loan all set, the due diligence phase began. Waters and\\n\\nMoore-Waters filled out a personal financial statement for Colony, listing their\\n\\nassets, income, liabilities, and things of that nature. To say the least, they weren’t\\n\\nas forthcoming as they should have been. The couple left blank the line asking\\n\\nthem about any unpaid income taxes, and they listed “0” as the amount or value of\\n\\noutstanding liens and other “assessments payable.” Truth be told, the couple had\\n\\nnearly half a million dollars of outstanding federal tax liens filed against them.\\n\\n\\n\\n 4\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 5 of 32\\n\\n\\nAnd the truth was told, or at least uncovered, when Colony ran a background check\\n\\na few weeks later that turned up the tax liens. 1\\n\\n As you can imagine, that discovery wrenched the lending process to a halt.\\n\\nWhen he found out about the liens Sanchez was “very very angry” because it “was\\n\\nan item that absolutely should have been disclosed” earlier in the process. He saw\\n\\nthe lack of disclosure as a “deal killer” because he didn’t want “to close a\\n\\ntransaction with [those] outstanding liens.” Sanchez explained:\\n\\n This [sort of thing] is disclosed up front. This is something that\\n when you find out during when you run a background check and hear\\n for the first time, that that [sic] is a huge red flag in terms of whether or\\n not, you know, this borrower has been disclosing and been forthright\\n on what his financial condition is.\\n\\n Selevan, the CEO of Chesterfield, encouraged Sanchez not to walk away\\n\\nfrom the deal and to work with Waters while they tried to come up with a solution\\n\\nto the tax liens. Sanchez agreed to wait and see. He considered the liens a “gating\\n\\nissue” that had to be resolved before the loan could be closed. Waters’ attorney,\\n\\nDavid Gentry, understood that. Because he did, on December 13, 2013, he sent the\\n\\nIRS Taxpayer Advocate a letter asking for approval of a payment plan and\\n\\nrequesting that the IRS provide “immediate assistance” so Waters could close the\\n\\nloan with Colony by December 18.\\n\\n\\n\\n 1\\n Those liens were for $32,917.77 from tax year 2007; $37,109.61 from 2008; $68,111.60\\nfrom 2009; and $328,656.00 from 2010, for a total of $466,794.98.\\n\\n\\n 5\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 6 of 32\\n\\n\\n Also on December 13, Waters himself called his Congressman’s office to\\n\\nask for help getting the tax liens removed. The constituent services representative\\n\\ntold him that the lien removal process typically took 30–45 days, but that it would\\n\\ntake longer for him because the IRS had already closed for the holidays and would\\n\\nnot begin processing any new requests until January. Waters told the\\n\\nrepresentative to send the request to the IRS anyway, which she did.\\n\\nParaskevidekatriaphobics would note that December 13 was a Friday.\\n\\n The following Monday, December 16, Waters emailed Gentry a letter that\\n\\nseemed to be from the IRS. It was also dated December 16, 2013, and appeared to\\n\\nbe on “Department of the Treasury: Internal Revenue Service” letterhead and bore\\n\\nthe seal of the IRS Office of the Chief Counsel. It stated in full:\\n\\n December 16, 2013\\n\\n VIA US MAIL AND FACSIMILE\\n\\n Re: Case No. 5684374\\n\\n Dear Taxpayers:\\n\\n We are in receipt of your letter submitted to us by the office of The\\n Honorable Hank Johnson, Member, U.S. House of Representative[s]\\n regarding Case No. 5684374 dated December 13, 2013.\\n\\n The letter dated December 13, 2013 referencing Financial Hardship —\\n Immediate Assistance needed was a request to expedite your form\\n 433A which was received in our office December 2, 2013.\\n\\n In accordance with Section 5.14.2.1 your request for Partial Payment\\n Installment Agreement (PPIA) has been approved. A field\\n\\n 6\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 7 of 32\\n\\n\\n representative will contact you in 60–90 days to discuss in further detail\\n the financial agreement.\\n\\n I hope you find this letter helpful in the resolution of your immediate\\n requirements. Please maintain copies of this letter for your permanent\\n records.\\n\\n Sincerely,\\n\\n Rebecca Langford\\n District Director\\n\\n Four minutes after receiving the letter, Gentry forwarded it to Colony’s\\n\\nattorney, Beau Baker, and asked if it resolved Colony’s concerns. It did not.\\n\\nBaker worried that the details of the IRS payment plan the letter referred to were\\n\\nmonths away, while the parties were trying to close the loan in the next couple of\\n\\nweeks. Sanchez, the senior vice president for Colony, also concluded that the\\n\\nletter was insufficient because it did not contain any specifics of the IRS payment\\n\\nplan.\\n\\n Then there was the question of authenticity. After talking with tax experts at\\n\\nhis law firm, Baker became concerned that the letter might not really be from the\\n\\nIRS at all. He did a Google search for “Rebecca Langford District Director” and\\n\\nlearned that the IRS had phased out the “District Director” position nine years\\n\\nbefore, sometime around 2004. Baker wrote to the IRS to verify the letter, and\\n\\nTony Baldwin, the initial mortgage broker, asked Waters if he had the contact\\n\\n\\n\\n\\n 7\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 8 of 32\\n\\n\\ninformation for Rebecca Langford. Waters responded that he did not.\\n\\nUndeterred, Waters sent this letter to Baldwin, Gentry, and Selevan:\\n\\n December 30, 2013\\n\\n RE: IRS Letter\\n\\n To Whom It May Concern:\\n\\n To the best of my knowledge the letter from Rebecca Langford IRS\\n District Director and dated December 16 2013 with the subject matter\\n “Partial Payment Installment Agreement” is from Rebecca Langford\\n IRS District Director.\\n\\n A copy of the letter is attached to this email. Thank you.\\n\\n Kind Regards,\\n\\n Al Waters\\n\\n Waters’ letter didn’t appease Colony. A few days into the new year, in\\n\\nresponse to an email from Baldwin that the delay in financing was putting Waters\\n\\n“in a very bad position,” Sanchez (the Colony VP) emailed Baldwin, Waters, and\\n\\nothers working on the deal: “With all due respect, we were not expecting to deal\\n\\nwith IRS liens in the hundreds of thousands of dollars with no plan in place. I am\\n\\nnot comfortable with a ‘to be determined’ plan with no clear documentation.”\\n\\nSanchez later testified that the tax liens were “absolutely critical things to resolve\\n\\nbefore . . . getting even close to approving this loan for closing.”\\n\\n It turned out, of course, that the IRS letter was “outrageously bogus,” as\\n\\nWaters’ trial attorney would later put it. Nobody at the IRS had approved a\\n\\n 8\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 9 of 32\\n\\n\\npayment plan for Waters; the IRS Office of Chief Counsel did not have district\\n\\ndirectors in 2013; and there was no one at the IRS named Rebecca Langford. The\\n\\nletter was as phony as Piltdown Man, although it did not take forty-one years to\\n\\ndisprove. Baker soon confirmed that the letter was false, and Colony killed the\\n\\ntransaction in January 2014. Waters eventually got a loan from a different lender.\\n\\nThat was not all he got.\\n\\n B. Trial And Sentencing\\n\\n Waters also got indicted on two counts of wire fraud in violation of 18\\n\\nU.S.C. § 1343. One count was for sending the fraudulent IRS letter and the other\\n\\none was for sending the email stating that letter was authentic. Waters pleaded not\\n\\nguilty and went to trial in November 2017. He moved for a judgment of acquittal\\n\\nat the conclusion of the government’s case in chief, arguing that there was\\n\\ninsufficient evidence for the jury to find that he had created the fraudulent\\n\\ndocuments and that, in any event, the deceptive documents were not material to the\\n\\nproposed loan agreement. The district court denied the motion and Waters failed\\n\\nto renew it at the end of his case.\\n\\n Waters did not testify at trial, but through his counsel he argued to the jury\\n\\nthat the prosecution had not proved beyond a reasonable doubt that Waters was\\n\\nresponsible for the false IRS letter or that he had intentionally lied in his email\\n\\nabout the letter. He also argued that the IRS letter wasn’t material to the loan\\n\\n\\n\\n 9\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 10 of 32\\n\\n\\ntransaction because well into January 2014, a month after the IRS letter had been\\n\\ncirculated, the two mortgage brokers (Baldwin and Selevan) tried to find other\\n\\nways for Waters to pay off the tax liens and make the loan work.\\n\\n One issue that came up at trial was how to charge the jury on wire fraud.\\n\\nWaters requested a jury instruction on the difference between a scheme to deceive\\n\\nand a scheme to defraud based on this Court’s decision in United States v.\\n\\nTakhalov, 827 F.3d 1307, 1312–13 (11th Cir. 2016). He asked the judge to\\n\\ninstruct the jury that: “to defraud, one must intend to use deception to cause some\\n\\ninjury; but one can deceive without intending to harm at all”; and “if a Defendant\\n\\ndoes not intend to harm the victim — to obtain, by deceptive means, something to\\n\\nwhich the Defendant is not entitled — then he has not intended to defraud the\\n\\nvictim.” Doc. 45 at 12 (quoting Takhalov, 827 F.3d at 1312–13).\\n\\n The government opposed Waters’ proposed instruction as unnecessary and\\n\\nincomplete — unnecessary because the case was a “straightforward scheme to\\n\\ndefraud,” and incomplete because the proposed instruction did not instruct the\\n\\njurors how to tell if a scheme caused harm or not, which happened only if the lie\\n\\naffected the “nature of the bargain itself.” See Takhalov, 827 F.3d at 1313.\\n\\n The judge told the parties that he was not inclined to give Waters’ proposed\\n\\ninstruction, but that if he did give it, he would include an explanation about how to\\n\\ntell if the lie caused harm and affected the nature of the bargain itself. Waters did\\n\\n\\n\\n 10\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 11 of 32\\n\\n\\nnot agree to that solution. 2 The judge then overruled Waters’ proposal and gave\\n\\nthe jury a charge based on the pattern instruction, without any language about the\\n\\ndifference between defrauding and deceiving. See Pattern Crim. Jury Instr. 11th\\n\\nCir. OI O51 (2016).3 The jury found Waters guilty on both counts of wire fraud.\\n\\n\\n 2\\n Here’s the exchange:\\n\\n The Court: I am not inclined to give [Waters’ proposed instruction], but if I did\\n give it I would add the government’s instruction. How would you feel about that,\\n Mr. Kish [the attorney for Waters]?\\n\\n Mr. Kish: Having never heard this until this moment, the government’s instruction,\\n I would need to look at it. But my thinking is that the reason I structured my\\n instruction in the manner in which I did was because it is the essence of the\\n [Takhalov] decision, it is what the Court said the rule of law was. All of these\\n examples —\\n\\n The Court: Read the instruction again, the proposed defendant’s instruction?\\n\\n Mr. Kish: I have just described what is needed to prove a scheme to defraud;\\n however, quote, there is a difference between deceiving and defrauding. To\\n defraud . . . one must intend to use deception to cause some injury. But one can\\n deceive . . . without intending to harm at all. Put another way, one who defrauds\\n always deceives, but one can deceive without defrauding. A defendant schemes to\\n defraud only if he schemes to deprive someone of something of value by trick,\\n deceit, chicane, or over-reaching. . . . But if a defendant does not intend to harm\\n the victim to obtain by deceptive means something to which the defendant is not\\n entitled, then he has not intended to defraud the victim. Furthermore, a schemer\\n who tricks someone into a transaction has not schemed to defraud so long as he\\n does not intend to harm the person he intends to trick. And this is so, even if the\\n transaction would not have occurred but for the trick. For if there is no intent to\\n harm, there can only be a scheme to deceive, but not one to defraud.\\n\\n The Court: I think that is overly confusing, and the subject is adequately covered\\n by the charge as given now. So I respectfully overrule the defendant’s request for\\n inclusion of his proposed charge no. 9.\\n\\n(Italics omitted.)\\n 3\\n This is the charge the district court gave:\\n\\n\\n\\n\\n 11\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 12 of 32\\n\\n\\n\\n\\n It is a federal crime to use interstate wire, radio, or television\\ncommunications to carry out a scheme to defraud someone else. The defendant can\\nbe found guilty of this crime only if all the following facts are proved beyond a\\nreasonable doubt. One, the defendant knowingly devised or participated in a\\nscheme to defraud, or to obtain money or property by using false pretenses,\\nrepresentations, or promises. Two, the false pretenses, representations, or promises\\nwere about a material fact. Three, the defendant acted with the intent to defraud.\\nAnd four, defendant transmitted or caused to be transmitted, by wire or some\\ncommunication in interstate commerce, to help carry out the scheme to defraud.\\n\\n The phrase scheme to defraud includes any plan or course of action intended\\nto deceive or cheat someone out of money or property by using false or fraudulent\\npretenses, representations, or promises. A statement or representation is false or\\nfraudulent if it is about a material fact that the speaker knows is untrue, or makes\\nwith reckless indifference to the truth, and makes with the intent to defraud. A\\nstatement or representation may be false or fraudulent when it is a half truth, or\\neffectively conceals a material fact, and is made with the intent to defraud.\\n\\n A material fact is an important fact that a reasonable person would use to\\ndecide whether to do or not do something. A fact is material if it has the capacity\\nor natural tendency to influence a person’s decision. It doesn’t matter whether the\\ndecision maker actually relied on the statement or knew or should have known that\\nthe statement was false; however, not all misrepresentation or omissions constitute\\na scheme to defraud. The misrepresentation or omission must be material, and it\\nmust be one on which a person of ordinary prudence would rely.\\n\\n The intent to defraud is the specific intent to deceive or cheat someone,\\nusually for personal financial gain or to cause financial loss to someone else. To\\nprove intent, the government must establish that the defendant believed that the\\nsupposed victim would act or refrain from acting in reliance upon that\\nrepresentation. The government does not have to prove all of the details alleged in\\nthe indictment about the precise nature and purpose of the scheme. It also doesn’t\\nhave to prove that the material transmitted by interstate wire was itself false or\\nfraudulent, or that using the wire was intended as the specific or exclusive means\\nof carrying out the alleged fraud, or that the defendant personally made the\\ntransmission over the wire, and it doesn’t have to prove that the alleged scheme\\nactually succeeded in defrauding anyone.\\n\\n\\n\\n\\n 12\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 13 of 32\\n\\n\\n Before sentencing, the probation office prepared a presentence report and\\n\\nrecommended the application of an 18-level enhancement under U.S.S.G.\\n\\n§ 2B1.1(b)(1)(J) for an intended loss amount of more than $3.5 million but less\\n\\nthan $9.5 million. That would have made Waters’ total offense level 25 and his\\n\\nguidelines range 57 to 71 months in prison. Waters objected to the enhancement\\n\\non the basis that there was no actual or intended loss. He pointed out that the\\n\\nbuilding, which was to serve as collateral for the loan, had been appraised in April\\n\\n2014 to be worth $8.4 million, $2.4 million more than the amount of the proposed\\n\\nloan from Colony. The government agreed that this meant the enhancement should\\n\\nnot apply. That concession brought Waters’ guidelines range down to zero to six\\n\\nmonths, and the district court sentenced him to six months in prison and one year\\n\\nof supervised release.\\n\\n Waters appeals his convictions and sentence. 4\\n\\n II. THE TAKHALOV ISSUES\\n\\n Waters contends that the district court abused its discretion by not giving his\\n\\nproposed jury instruction on the difference between fraud and deceit. He also\\n\\ncontends that there was insufficient evidence for the jury to find him guilty of wire\\n\\nfraud because the government did not show that he intended to harm Colony. Both\\n\\ncontentions rely on our decision in Takhalov. Since that case came out, a judge of\\n\\n\\n 4\\n Waters is currently out on bond and has not begun serving his sentence.\\n\\n\\n 13\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 14 of 32\\n\\n\\nour Court has questioned some of the statements in that opinion. See United States\\n\\nv. Feldman, 931 F.3d 1245, 1265–74 (11th Cir. 2019) (W. Pryor, J., concurring).\\n\\nWe need not get into that here. Even assuming that every statement in our\\n\\nTakhalov opinion is correct, this case is distinguishable.\\n\\n A. The Takhalov Case\\n\\n The federal wire fraud statute makes criminal any “scheme or artifice to\\n\\ndefraud.” 18 U.S.C. § 1343. The statute does not define what that is, but we have.\\n\\nSee United States v. Bradley, 644 F.3d 1213, 1239–40 (11th Cir. 2011). And one\\n\\nthing we’ve recognized, tautologically perhaps, is that to be convicted under the\\n\\n§ 1343 fraud statute a defendant’s “scheme must be a scheme to defraud rather\\n\\nthan to do something other than defraud.” Takhalov, 827 F.3d at 1312. What is\\n\\nessential to a scheme to defraud is a question we confronted in Takhalov.\\n\\n The Takhalov defendants were a group of bar owners who had hired women\\n\\nto pose as tourists and lure visiting businessmen into the defendants’ bars and\\n\\nnightclubs. Id. at 1310. Then bartenders at the clubs would trick the unsuspecting\\n\\nbusinessmen into buying ridiculously overpriced alcohol by misrepresenting the\\n\\nprices of drinks or forging the men’s signatures on their credit card receipts. See\\n\\nid. at 1310–11. The defendants admitted that they had hired the “B-girls” to lure\\n\\nthe men into the clubs and that the women did not tell the men that they had been\\n\\nhired to do so. Id. But the defendants denied knowing about the fraud that took\\n\\n\\n\\n 14\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 15 of 32\\n\\n\\nplace once the men went into the clubs. Id. The defendants claimed that as far as\\n\\nthey knew, once the men came to the clubs they “got what they paid for.” Id. at\\n\\n1311.\\n\\n The Takhalov defendants asked the district court to instruct their jury that\\n\\n“failure to disclose the financial arrangement between the B-girls and the Bar, in\\n\\nand of itself, is not sufficient to convict a defendant” of wire fraud. Id. at 1314\\n\\n(brackets and quotation marks omitted). The district court refused to give that\\n\\ninstruction, the government argued that the jury could return a verdict based on\\n\\nthat initial trickery alone, and the jury did. Id. at 1310–11. We reversed the\\n\\ndefendants’ convictions. Id. at 1324.\\n\\n Our reasoning proceeded in three main steps. First, we noted that “there is a\\n\\ndifference between deceiving and defrauding: to defraud, one must intend to use\\n\\ndeception to cause some injury; but one can deceive without intending to harm at\\n\\nall.” Id. at 1312. Second, that distinction meant that “if a defendant does not\\n\\nintend to harm the victim — to obtain, by deceptive means, something to which the\\n\\ndefendant is not entitled — then he has not intended to defraud the victim.” Id. at\\n\\n1313 (brackets and quotation marks omitted). And third, “[f]rom that conclusion, a\\n\\ncorollary follows: a schemer who tricks someone to enter into a transaction has not\\n\\n‘schemed to defraud’ so long as he does not intend to harm the person he intends to\\n\\ntrick.” Id. “[T]his is so,” we said, “even if the transaction would not have\\n\\n\\n\\n 15\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 16 of 32\\n\\n\\noccurred but for the trick. For if there is no intent to harm, there can only be a\\n\\nscheme to deceive, but not one to defraud.” Id.\\n\\n To tell the difference between a scheme to deceive and a scheme to defraud,\\n\\nwe instructed courts to look at “the nature of the bargain itself.” Id. at 1313. And\\n\\na lie about the nature of the bargain can take two primary forms. Id. First, “the\\n\\ndefendant might lie about the price (e.g., if he promises that a good costs $10 when\\n\\nit in fact costs $20).” Id at 1313–14. Or second, “he might lie about the\\n\\ncharacteristics of the good (e.g., if he promises that a gemstone is a diamond when\\n\\nit is in fact a cubic zirconium).” Id. at 1314. “In each case, the defendant has lied\\n\\nabout the nature of the bargain and thus in both cases the defendant has committed\\n\\nwire fraud.” Id.\\n\\n By contrast, we explained, “if a defendant lies about something else — e.g.,\\n\\nif he says that he is the long-lost cousin of a prospective buyer — then he has not\\n\\nlied about the nature of the bargain, has not ‘schemed to defraud,’ and cannot be\\n\\nconvicted of wire fraud on the basis of that lie alone.” Id. And that is so even if\\n\\nthe buyer would not have bought anything but for the lie. Id. (citing United States\\n\\nv. Shellef, 507 F.3d 82, 108 (2d Cir. 2007) (drawing “a fine line between schemes\\n\\nthat do no more than cause their victims to enter into transactions that they would\\n\\notherwise avoid — which do not violate the mail or wire fraud statutes — and\\n\\nschemes that depend for their completion on a misrepresentation of an essential\\n\\n\\n\\n 16\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 17 of 32\\n\\n\\nelement of the bargain — which do violate the mail and wire fraud statutes”);\\n\\nUnited States v. Starr, 816 F.2d 94, 98 (2d Cir. 1987) (“Misrepresentations\\n\\namounting only to a deceit are insufficient to maintain a mail or wire fraud\\n\\nprosecution. Instead, the deceit must be coupled with a contemplated harm to the\\n\\nvictim . . . affect[ing] the very nature of the bargain itself.”) (internal quotation\\n\\nmarks omitted); United States v. Regent Office Supply Co., 421 F.2d 1174, 1182\\n\\n(2d Cir. 1970) (“[W]e conclude that the defendants intended to deceive their\\n\\ncustomers but they did not intend to defraud them, because the falsity of their\\n\\nrepresentations was not shown to be capable of affecting the customer’s\\n\\nunderstanding of the bargain nor of influencing his assessment of the value of the\\n\\nbargain to him, and thus no injury was shown to flow from the deception.”).\\n\\n B. The District Court’s Jury Instructions\\n\\n With that background in mind, we turn to Waters’ contention that the district\\n\\ncourt erred by refusing to give his Takhalov-based jury instruction. We review\\n\\nthat decision only for an abuse of discretion. United States v. Dohan, 508 F.3d\\n\\n989, 993 (11th Cir. 2007). “The failure of a district court to give an instruction is\\n\\nreversible error where the requested instruction (1) was correct, (2) was not\\n\\nsubstantially covered by the charge actually given, and (3) dealt with some point in\\n\\nthe trial so important that failure to give the requested instruction seriously\\n\\n\\n\\n\\n 17\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 18 of 32\\n\\n\\nimpaired the defendant’s ability to conduct his defense.” United States v.\\n\\nEckhardt, 466 F.3d 938, 947–48 (11th Cir. 2006).\\n\\n Waters requested that the district court give this instruction:\\n\\n I have just described what is needed to prove a scheme to\\n defraud. However, there is a difference between deceiving and\\n defrauding; to defraud, one must intend to use deception to cause some\\n injury; but one can deceive without intending to harm at all. Put another\\n way, one who defrauds always deceives, but one can deceive without\\n defrauding.\\n\\n A Defendant schemes to defraud only if he schemes to deprive\\n someone of something of value by trick, deceit, chicane or\\n overreaching. But if a Defendant does not intend to harm the\\n victim — to obtain, by deceptive means, something to which the\\n Defendant is not entitled — then he has not intended to defraud the\\n victim.\\n\\n Furthermore, a schemer who tricks someone to enter into a\\n transaction has not schemed to defraud so long as he does not intend to\\n harm the person he intends to trick. And this is so even if the transaction\\n would not have occurred but for the trick. For if there is no intent to\\n harm, there can only be a scheme to deceive, but not one to defraud.\\n\\n(Alterations and quotation marks omitted).\\n\\n The district court did not abuse its discretion when it refused to give that\\n\\ninstruction. Though composed of quotations from our opinion in Takhalov,\\n\\nWaters’ “proposed instruction was an incomplete statement of the law and would\\n\\nhave confused the jury.” United States v. Solomon, 686 F.2d 863, 876 (11th Cir.\\n\\n1982). The proposal emphasized the requirement that a defendant have the intent\\n\\nto harm, but it never defined what harm meant. And it introduced the distinction\\n\\n\\n\\n 18\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 19 of 32\\n\\n\\nbetween a scheme to deceive and a scheme to defraud, but it didn’t tell the jurors\\n\\nhow to tell the difference between them. Without those tools the jury could hardly\\n\\nhave been expected to apply our Takhalov decision correctly.\\n\\n The government pointed all of that out at the charge conference when it\\n\\nasked the district court to supply the missing link in Waters’ instruction. The\\n\\nadditional language proposed by the government would have instructed the jury\\n\\nthat “[t]he ‘scheme to defraud,’ as that phrase is used in the wire fraud statute,\\n\\nrefer[s] only to those schemes in which a defendant lies about the nature of the\\n\\nbargain itself.” Doc. 89 at 5–6 (quoting Takhalov, 827 F.3d at 1313). That\\n\\naddition would have enabled the jurors to tell the difference between the two kinds\\n\\nof schemes because it would have defined for them what “harm” means. To recap:\\n\\nIn a scheme to deceive, the victim of the lie hasn’t been harmed because he still\\n\\nreceived what he paid for. But in a scheme to defraud, the victim has been harmed\\n\\nbecause the misrepresentation affected the nature of the bargain, either because the\\n\\nperpetrator lied about the value of the thing (for example, promising something\\n\\ncosts $10 when it actually costs $20), or because he lied about the thing itself (for\\n\\nexample, promising a gemstone is a diamond when it is actually a cubic\\n\\nzirconium). Takhalov, 827 F.3d at 1313–14. Either way, though, the victim didn’t\\n\\nget what he paid for.\\n\\n\\n\\n\\n 19\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 20 of 32\\n\\n\\n By not including that distinction, and then not accepting the government’s\\n\\nproposal to add it, Waters asked the court to give an incomplete and misleading\\n\\njury instruction. The court did not abuse its discretion when it deemed the\\n\\ninstruction “overly confusing.” See United States v. Cooper, 926 F.3d 718, 736\\n\\n(11th Cir. 2019) (affirming district court’s rejection of a defendant’s proposed\\n\\ninstruction “because it was misleading and confusing”) (quotation marks omitted);\\n\\nUnited States v. Silverman, 745 F.2d 1386, 1396 (11th Cir. 1984) (noting that a\\n\\ndistrict court “is bound to refuse a requested instruction that is incomplete,\\n\\nerroneous, or misleading”).\\n\\n Waters’ argument also fails for another reason. Unlike in Takhalov, his\\n\\nproposed jury instruction did not concern a “point in the trial so important that\\n\\nfailure to give the requested instruction seriously impaired [his] ability to conduct\\n\\nhis defense.” Eckhardt, 466 F.3d at 947–48. Recall that Waters had two main\\n\\ntheories at trial. The first was that he didn’t create the IRS letter and didn’t know it\\n\\nwas fake when he sent it to Colony. The district court’s refusal to give the\\n\\nproposed instruction did not impact the presentation of that theory at all.\\n\\n Waters’ second theory was that the IRS letter “didn’t matter” because the\\n\\n“deal was going forward with or without that letter.” His attorney made the point\\n\\nthis way in his closing argument:\\n\\n Did the Langford letter even make any difference, considering what\\n happened over the course of time? We will go over it again, but I think\\n\\n 20\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 21 of 32\\n\\n\\n we pretty well established this at trial. . . . After the Rebecca Langford\\n letter is sent on [December] 16th, minutes later, Larry Selevan,\\n chomping at the bit, says, well, good enough for me. I am ready to go.\\n Nobody cared about the Rebecca Langford Letter. Nobody cared about\\n the taxes. . . . The Langford letter didn’t mean squat. And the reason\\n it didn’t mean squat is because of what the witnesses told you. We\\n wanted the deal to finalize. . . . Nobody worried about whether the\\n Rebecca Langford letter was authentic. To use the words of the\\n lawyers, it has to be material. It has to be important. It was not\\n important.\\n\\n As Waters’ attorney told the jury, that is an argument about materiality. The\\n\\njudge explicitly defined that term for the jurors (“A material fact is an important\\n\\nfact that a reasonable person would use to decide whether to do or not do\\n\\nsomething”) and instructed them that to be guilty of wire fraud Waters must have\\n\\nomitted or misrepresented a fact that was material. See Pattern Crim. Jury Instr.\\n\\n11th Cir. OI O51 (2016). So when Waters argued that the false IRS letter was not\\n\\nmaterial because the deal was going forward “with or without that letter,” and\\n\\nwhen he said that the letter did not concern a material fact because “nobody cared\\n\\nabout the taxes,” his arguments were in accord with the court’s instructions. Of\\n\\ncourse, the deal did not go forward “with or without that letter” and that may be\\n\\none reason the jury rejected his argument. But the jury’s rejection of Waters’\\n\\ntheory does not mean he was “seriously impaired” in his ability to present that\\n\\ntheory to the jury. Eckhardt, 466 at 948. He wasn’t.\\n\\n This is materially different from what happened in Takhalov. Unlike in\\n\\nWaters’ case, the jury instruction the Takhalov defendants requested was integral\\n\\n 21\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 22 of 32\\n\\n\\nto their argument. Their argument did not hinge on whether the businessmen still\\n\\nwould have gone into the clubs had they known of the true relationship between\\n\\nthe B-Girls and the bar owners. See 827 F.3d at 1310–11. Instead, the defendants\\n\\nargued that their concealment of their relationship with the B-Girls did not\\n\\nconstitute wire fraud, regardless of whether that concealment was material to the\\n\\nbusinessmen’s decisions to enter the clubs. That is why the defendants asked for\\n\\nthis jury instruction: “Failure to disclose the financial arrangement between the B-\\n\\nGirls and the Bar, in and of itself, is not sufficient to convict a defendant of any\\n\\noffense.” Id. at 1311 (alterations omitted). The Takhalov defendants did not get to\\n\\npresent their theory to the jury because the district court rejected their proposed\\n\\njury instruction that would have put that theory before the jury. As we explained,\\n\\n“[w]ithout an instruction supporting the defendants’ theory, the jury was not\\n\\nrequired to believe this theory . . . [and] the jury could believe what the\\n\\ngovernment argued in its closing: that the concealment was material and the\\n\\ndefendants acted with the intent to deceive or cheat the victims.” Id. at 1322–23.\\n\\n By contrast, Waters’ proposed jury instruction on the difference between\\n\\nfraud and deceit did not propose either of his two defense theories. As a result, the\\n\\nrejection of his jury instruction did not impair his presentation of a defense theory.\\n\\nSee Eckhardt, 466 F.3d at 947–48 (holding that defendant accused of violating the\\n\\nCommunications Decency Act was not impaired by trial court’s refusal to alter its\\n\\n\\n\\n 22\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 23 of 32\\n\\n\\njury instruction defining what constituted an “obscene” phone call because\\n\\ndefendant’s theory of the case was that he did not make the alleged phone calls).\\n\\nNor did Waters change a theory at trial in response to the court’s rejection of his\\n\\nproposed jury instruction, as the Takhalov defendants did. Not until Waters got to\\n\\nthis Court did he argue that his misrepresentations weren’t wire fraud because they\\n\\ndid not affect the bargain between the parties. (More on that argument below.) He\\n\\ndid not consent to the government’s proposed instruction that would have\\n\\ninstructed the jury on that very topic. Given all of that, the district court did not\\n\\nabuse its discretion when it declined to give Waters’ proposed jury instruction.5\\n\\n C. Sufficiency Of The Evidence\\n\\n We turn now to Waters’ second Takhalov-based argument: that the district\\n\\ncourt should have granted his motion for a judgment of acquittal because there was\\n\\ninsufficient evidence that he intended to harm Colony. “Ordinarily, we review de\\n\\nnovo whether sufficient evidence supports a conviction, viewing the evidence and\\n\\ntaking all reasonable inferences in favor of the jury’s verdict.” United States v.\\n\\nFries, 725 F.3d 1286, 1291 (11th Cir. 2013). But Waters did not renew his motion\\n\\n\\n 5\\n One side point is worth addressing. At the final charge conference Waters argued that\\nhis proposed jury instruction was needed “[b]ecause there is the chance that jurors could think\\nthat . . . the failure to include all of the tax liens on . . . the personal financial statement by itself\\nwould be sufficient to show fraud.” By not raising this point on appeal Waters has abandoned\\nany argument that the jury found him guilty based on the false financial statement instead of the\\nfraudulent IRS letter and the email Waters sent affirming the IRS letter. See AT&T Broadband\\nv. Tech Commc’ns, Inc., 381 F.3d 1309, 1320 n.14 (11th Cir. 2004) (“Issues not raised on appeal\\nare considered abandoned.”).\\n\\n\\n 23\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 24 of 32\\n\\n\\nfor acquittal at the close of all the evidence or present to the district court his\\n\\ncurrent theory of why there was insufficient evidence for the jury to find him\\n\\nguilty. Because of his failure to renew the motion, “we will reverse [his]\\n\\nconviction only where doing so is necessary to prevent a manifest miscarriage of\\n\\njustice.” Id. (quotation marks omitted). Which means only if we find “either that\\n\\nthe record is devoid of evidence of an essential element of the crime or that the\\n\\nevidence on a key element of the offense is so tenuous that a conviction would be\\n\\nshocking.” Id. (quotation marks omitted).\\n\\n Relying on Takhalov, Waters argues that the tax liens were peripheral to the\\n\\nproposed loan transaction and, as a result, any lies about those liens (including the\\n\\nletters he sent about the make-believe payment plan with the IRS) could not\\n\\nconstitute wire fraud because they did not affect the bargain between the parties.\\n\\nThis is basically a repackaging of his jury charge argument, but with a twist: it\\n\\nrelies on the law in the instruction proposed by the government instead of the\\n\\ninstruction he suggested.\\n\\n In Waters’ telling, the tax liens merely “went to the integrity of\\n\\nmanagement,” and the projected cash flow from the new medical building formed\\n\\nthe heart of the bargain. He says that cash flow combined with the $2.4 million\\n\\n“over-collateralization” of the building itself “ensured repayment of the requested\\n\\n\\n\\n\\n 24\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 25 of 32\\n\\n\\nLoan in full.” And, as a result, “the removal of [the] tax liens was not ‘part of the\\n\\nbargain.’”\\n\\n The jurors heard plenty of evidence that would cause them to disbelieve that\\n\\ntheory. For example, Sanchez, Colony’s senior vice president, called the discovery\\n\\nof the tax liens “a deal killer” because he did not “want[] to close a transaction\\n\\nwith the[] outstanding liens.” And even after the folks at Chesterfield Faring\\n\\nconvinced Sanchez not to walk away from the deal when he first learned of the\\n\\nliens, he still considered the tax liens a “gating issue” that had to be resolved\\n\\nbefore he would consider making the loan. As he testified at trial: The liens were\\n\\n“absolutely critical things to resolve before . . . getting even close to approving\\n\\nth[e] loan for closing.”\\n\\n Colony’s attorney, Beau Baker, testified to much the same thing. Once he\\n\\ndiscovered that the tax liens existed, he stopped working on the due diligence and\\n\\ndocumentation for the loan until the liens could be resolved. He explained to the\\n\\njury: “[I]f there is a creditor out there, especially a super creditor like the Internal\\n\\nRevenue Service, that creditor could come after your borrower later on or come\\n\\nafter the guarantor, and that could put the payment stream that is coming to my\\n\\nclient in jeopardy.” The attorney representing Waters in the deal, David Gentry,\\n\\nalso understood that Colony “required either the tax liens get paid off or that some\\n\\n\\n\\n\\n 25\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 26 of 32\\n\\n\\nsort of payment plan be in place with the IRS to pay it off over time” before the\\n\\nloan could be closed.\\n\\n To all of that, Waters says: Doesn’t matter. He argues that Takhalov teaches\\n\\nthat there’s a difference between a scheme to deceive and a scheme to defraud.\\n\\nAnd he says defrauding means that the material misrepresentation must affect the\\n\\nnature of the bargain and not something else. Waters points to Takhalov’s\\n\\nreasoning that “even if the transaction would not have occurred but for the trick,”\\n\\nTakhalov, 827 F.3d at 1313, “a wire-fraud case must end in an acquittal if the jury\\n\\nnevertheless believes that the alleged victims [would have] received exactly what\\n\\nthey paid for,” id. at 1314 (quotation marks omitted). Purporting to apply that\\n\\nreasoning here, Waters argues that his case should have ended in an acquittal\\n\\nbecause, as the government itself conceded at sentencing, the collateral was worth\\n\\n$2.4 million more than the amount of the loan.\\n\\n There are three reasons why Waters’ conclusion does not follow from his\\n\\npremise. The first is that it misconstrues the nature of the bargain with Colony. As\\n\\nthe government persuasively points out, the bargain was not for Colony to be\\n\\nsucked into a time-consuming and expensive foreclosure to mitigate its losses if\\n\\nWaters was unable to make the payments on the loan. The bargain was to make a\\n\\nsolid loan in the first place and to receive loan payments without the threat of\\n\\noutstanding tax liens getting in the way.\\n\\n\\n\\n 26\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 27 of 32\\n\\n\\n That theory was supported by lots of testimony at trial. It’s why Sanchez\\n\\ndescribed the tax liens as a “gating issue,” and why Baker told the jury that he was\\n\\nworried about the liens because they “could put the payment stream that [was]\\n\\ncoming to [Colony] in jeopardy.” So the jury was free to conclude that Waters’\\n\\ncreditworthiness, as the guarantor of the loan with Sondial, affected the value of\\n\\nthe transaction and was part of the bargain itself. See United States v. Appolon,\\n\\n715 F.3d 362, 368–69 (1st Cir. 2013) (holding that misrepresentations in loan\\n\\napplications used “to assess [a] borrower’s creditworthiness” were material\\n\\nbecause they were “capable of influencing [the lender’s] decision”) (quotation\\n\\nmarks omitted); see also United States v. Rossomando, 144 F.3d 197, 201 (2d Cir.\\n\\n1998) (“[W]here a defendant deliberately supplies false information to obtain a\\n\\nbank loan . . . the defendant’s good-faith intention to pay back the loan is no\\n\\ndefense because he intended to inflict a genuine harm upon the bank — i.e., to\\n\\ndeprive the bank of the ability to determine the actual level of credit risk and to\\n\\ndetermine for itself on the basis of accurate information whether, and at what price,\\n\\nto extend credit to the defendant.”) (footnote omitted).\\n\\n The second reason why the appraised value of the collateral exceeding the\\n\\namount of the loan does not render the misrepresentations about the tax liens\\n\\nimmaterial is that the appraisal of the collateral did not exist until after the deal\\n\\nwith Colony fell through. Waters’ misrepresentations to Colony about the tax liens\\n\\n\\n\\n 27\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 28 of 32\\n\\n\\noccurred in December of 2013. Colony learned in late January of 2014 that the\\n\\nletter from the IRS was fake. It was at that point that Colony walked away from\\n\\nthe deal for good. Waters then courted another company for the loan, and it was\\n\\nthat other company, Thorofare, that had the property appraised in April of 2014.\\n\\nThe appraisal did not exist when Waters misrepresented the facts about the tax\\n\\nliens, when Colony was considering Waters’ loan application, when Colony\\n\\ndiscovered the misrepresentations, or when it walked away. Something that did\\n\\nnot exist at the time of the fraud cannot evidence a lack of intent to defraud.\\n\\n The third reason why the appraisal cannot figure into the sufficiency of the\\n\\nevidence to prove intent to defraud is that sufficiency is judged based only on the\\n\\nevidence before the jury. When deciding whether there was sufficient evidence to\\n\\nconvict, we may not consider evidence the jury never heard. See United States v.\\n\\nDeSimone, 660 F.2d 532, 538–39 (5th Cir. Unit B Nov. 1981). No evidence of the\\n\\nappraisal was ever put before the jury. None. The first time it was mentioned was\\n\\nin Waters’ sentencing memoranda, six months after the jury had returned its\\n\\nverdict and gone home. That was six months too late.\\n\\n III. THE OTHER ISSUES\\n\\n Waters has two more contentions, neither of which has merit. First, he\\n\\ncontends that the district court committed reversible error by not making an “on-\\n\\n\\n\\n\\n 28\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 29 of 32\\n\\n\\nthe-record waiver inquiry” about his decision not to testify at trial. 6 Waters was\\n\\nrepresented by an able defense attorney whom the trial judge complimented several\\n\\ntimes for doing a good job. And Waters acknowledges that there is no “per se\\n\\nrequirement that the district court advise the defendant of his right to testify and\\n\\nconduct an on-the-record inquiry into whether a non-testifying defendant\\n\\nknowingly, voluntarily, and intelligently waived the right to testify.” United States\\n\\nv. Van De Walker, 141 F.3d 1451, 1452 (11th Cir. 1998). So why does he contend\\n\\nthat the district court committed reversible error? Because he was the “only person\\n\\nin a position to refute the prosecution’s case,” thereby making his situation\\n\\n“exceptional.”\\n\\n\\n\\n 6\\n The parties disagree about what standard of review applies to this claim. The\\ngovernment argues that plain error review applies because Waters did not object at trial, and that\\nseems right. But Waters relies on our decision in United States v. Hung Thien Ly, 646 F.3d\\n1307, 1318 (11th Cir. 2011), to argue that the standard of review is “unsettled” and that\\nstructural error analysis may apply.\\n In Hung Thien Ly, the pro se defendant failed to object at trial to the district court’s\\nfailure to correct his misunderstanding of his right to testify. We rejected the government’s\\nargument that we should review only for plain error. Id. at 1312 & n.5. We explained: “The\\nGovernment contends that plain-error review must apply because Ly never objected to the\\ndistrict court’s alleged denial of his right to testify. In the context of Ly’s claim, this argument is\\nabsurd. Ly’s argument on appeal is that his confusion regarding his right to testify was so\\napparent during the court-initiated colloquy that the district court was obligated to correct his\\nmisunderstanding. By definition, Ly could not have objected to the district court’s actions, for\\nhis claim lies in his ignorance of the law.” Id. at 1312 n.5. Looking at the issue de novo, we\\nheld that the district court had erred by not correcting the pro se defendant’s misunderstanding of\\nhis right to testify, and then we assumed without deciding that harmless-error analysis applied\\nand held that the error was harmful. Id. at 1318.\\n There are significant differences between this case and Hung Thien Ly. The most\\nobvious of them is that Waters was represented by able counsel while the defendant in Hung\\nThien Ly had no counsel. But even if we assume that de novo review applies, Waters still cannot\\nprevail on his claim that the district court should have inquired about his decision not to testify.\\n\\n\\n 29\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 30 of 32\\n\\n\\n We don’t accept that as a ground for relief. While being in a position to\\n\\nrefute the prosecution’s case may have been a good reason for Waters to take the\\n\\nstand (though we doubt it’s all that “exceptional”), it certainly isn’t enough to\\n\\nestablish that his decision not to testify was unknowingly and unintelligently made.\\n\\nSee Hung Thien Ly, 646 F.3d at 1317 (“[A]bsent evidence to the contrary, district\\n\\ncourts should presume that the defendant, even a pro se defendant, has made a\\n\\nknowing and intelligent decision about whether to testify.”).\\n\\n Second, Waters also contends that the district court made an erroneous\\n\\nfactual finding that impacted his sentence. We normally review the procedural\\n\\nreasonableness of a sentence under an abuse-of-discretion standard, and a court\\n\\nabuses its discretion if it “select[s] a sentence based on clearly erroneous facts.”\\n\\nGall v. United States, 552 U.S. 38, 51 (2007). Because Waters did not object at the\\n\\nsentence hearing, however, we review the alleged error only for plain error. See\\n\\nUnited States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014) (using plain\\n\\nerror review because defendant failed to object on procedural reasonableness\\n\\ngrounds at sentencing). “Under plain error review, we can correct an error only\\n\\nwhen (1) an error has occurred, (2) the error was plain, (3) the error affected\\n\\nsubstantial rights, and (4) the error seriously affects the fairness, integrity or public\\n\\nreputation of judicial proceedings.” Dupree v. Warden, 715 F.3d 1295, 1301 (11th\\n\\nCir. 2013).\\n\\n\\n\\n 30\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 31 of 32\\n\\n\\n Waters’ contention is based on a comment the judge made at the end of the\\n\\nsentence hearing, after he had announced Waters’ six-month sentence:\\n\\n I don’t think this man is ever going to commit another crime. It\\n may not feel like it, but he got a break. I mean, what a break. If that\\n loan had not been repaid, we are looking at about a five-year sentence,\\n so he got that break.\\n\\n That was a misstatement. Waters had not paid back a loan to Colony\\n\\nbecause there never was a loan from Colony to repay. But Waters has not shown\\n\\nthat the misstatement constituted a clearly erroneous factual finding because he has\\n\\nnot shown that it was a factual finding at all. Earlier in the hearing the district\\n\\ncourt formally adopted the unobjected-to factual findings in the PSR. Those\\n\\nfindings made clear that although Waters had applied for a loan from Colony, he\\n\\nhad not received one. The judge said that the fact that Colony had not lost any\\n\\nloaned money “ma[de] a big difference” for sentencing purposes. That is literally\\n\\ntrue. Viewed in this context, we can’t say that the judge’s slip up about the loan\\n\\nhaving been repaid — as opposed to never having been made — was a relevant\\n\\nfact finding instead of a stray comment at the end of a long hearing. And it is one\\n\\nto which there was no objection.\\n\\n Even if we were to consider the comment a clearly erroneous factual finding,\\n\\nWaters has still not shown that it affected his sentence, as required to establish\\n\\nplain error. See Vandergrift, 754 F.3d at 1312 (“In order for an error to have\\n\\naffected substantial rights, it must have affected the outcome of the district court\\n\\n 31\\n\\f Case: 18-11333 Date Filed: 09/10/2019 Page: 32 of 32\\n\\n\\nproceedings.”) (quotation marks omitted). According to Waters, the misstatement\\n\\naffected his sentence because it showed that the judge “did not believe that [he]\\n\\ndeserved any leniency because he already had received the benefit of the Loan\\n\\nbeing repaid.” But the judge himself gave three reasons for why he thought that\\n\\nWaters did deserve leniency: (1) there was no economic harm to Colony,\\n\\n(2) Waters’ conduct had otherwise been lawful and upstanding, and (3) Waters had\\n\\na lot of community support. Not only that, but after the judge had commented at\\n\\nthe beginning of the sentence hearing that he did not think that the government’s\\n\\nproposed sentence of a year and a day would be long enough, he ended up\\n\\nsentencing Waters to only six months. That indicates the judge had an open mind\\n\\nand gave consideration to Waters’ arguments at sentencing. Waters’ speculation\\n\\nabout a single comment that the judge made after he had imposed the sentence is\\n\\nnot enough to show that it affected Waters’ sentence.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 32\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4492,"cells":{"id":{"kind":"number","value":4660546,"string":"4,660,546"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Kimberly Lowe v. STME, LLC"},"decision_date":{"kind":"string","value":"2019-09-12"},"docket_number":{"kind":"string","value":"18-11121"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before JORDAN, GRANT and HULL, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"HULL, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-11121 Date Filed: 09/12/2019 Page: 1 of 33\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n Nos. 18-11121, No. 18-12277\\n ________________________\\n\\n D.C. Docket No. 8:17-cv-00977-MSS-CPT\\n\\n\\n\\nEQUAL EMPLOYMENT OPPORTUNITY COMMISSION,\\n\\n Plaintiff-Appellant,\\n\\nKIMBERLY LOWE,\\n\\n Intervenor-Appellant,\\n\\n versus\\n\\nSTME, LLC,\\nd.b.a. Massage Envy-South Tampa,\\n\\n Defendant-Appellee.\\n\\n ________________________\\n\\n Appeals from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (September 12, 2019)\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 2 of 33\\n\\n\\nBefore JORDAN, GRANT and HULL, Circuit Judges.\\n\\nHULL, Circuit Judge:\\n\\n In this consolidated appeal, the plaintiff Equal Employment Opportunity\\n\\nCommission (“EEOC”) and intervenor Kimberly Lowe appeal the entry of\\n\\njudgment for defendant STME, LLC, d.b.a. Massage Envy-South Tampa\\n\\n(“Massage Envy”), on their employment discrimination claims brought under the\\n\\nAmericans with Disabilities Act of 1990 (“ADA”), as amended by the ADA\\n\\nAmendments Act of 2009. Although the EEOC brought only disability\\n\\ndiscrimination claims, it is undisputed that Lowe was not actually disabled when\\n\\nMassage Envy terminated her employment. The EEOC, however, alleged that\\n\\nMassage Envy violated the ADA because it fired Lowe when she refused to cancel\\n\\nher trip to Ghana, a country in West Africa. Massage Envy’s stated reason for the\\n\\ntermination was its fear that Lowe might contract and later develop Ebola due to\\n\\nher Ghana travel. This case involves issues of first impression as to the meaning of\\n\\n“regarded as having such an impairment,” which is a statutory phrase contained in\\n\\n42 U.S.C. § 12102(1)(C).\\n\\n After review and oral argument, we conclude that, even construing the\\n\\nstatute broadly, the terms of the ADA protect persons who experience\\n\\ndiscrimination because of a current, past, or perceived disability—not because of a\\n\\n\\n\\n\\n 2\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 3 of 33\\n\\n\\npotential future disability that a healthy person may experience later. Accordingly,\\n\\nwe affirm the district court’s final judgment in favor of defendant Massage Envy.\\n\\n I. FACTUAL BACKGROUND\\n\\n Because this appeal arises at the motion-to-dismiss stage, we accept as true\\n\\nthe facts as alleged in the EEOC’s complaint. See Bailey v. Wheeler, 843 F.3d\\n\\n473, 480 (11th Cir. 2016).\\n\\nA. Lowe’s Employment at Massage Envy\\n\\n Massage Envy is a wellness franchise that offers massage and skin care\\n\\nservices. In January 2012, Kimberly Lowe began working as a massage therapist\\n\\nat a Massage Envy located in Tampa, Florida. At all times relevant to this case,\\n\\nLowe did not have a disability. Rather, she was both capable of performing her job\\n\\nduties and did perform her job duties in a satisfactory manner.\\n\\n In September 2014, Lowe asked Massage Envy for time off so that she could\\n\\nvisit her sister in Ghana, a country located in West Africa. Massage Envy’s\\n\\nbusiness manager, Roxanna Iorio, initially approved Lowe’s request. However, on\\n\\nOctober 22, 2014, three days before her scheduled trip, one of Massage Envy’s\\n\\nowners, Ronald Wuchko, met with Lowe and told her that she would be fired if she\\n\\nwent ahead with her travel plans.\\n\\n Owner Wuchko was concerned that Lowe would become infected with the\\n\\nEbola virus if she traveled to Ghana and would “bring it home to Tampa and infect\\n\\n\\n 3\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 4 of 33\\n\\n\\neveryone.” At that time in 2014, there was an Ebola epidemic in Guinea, Liberia,\\n\\nand Sierra Leone, three other nearby countries in West Africa. According to\\n\\nWuchko, he was worried about the “potentially catastrophic consequences that an\\n\\noutbreak of Ebola could pose to America.” Because Lowe refused to cancel her\\n\\ntrip, Wuchko terminated her employment during that October 22 meeting and\\n\\nbefore she left.\\n\\n Lowe then traveled to Ghana as planned. She did not contract Ebola while\\n\\nthere. In fact, as it turned out, there was no Ebola outbreak at all in Ghana in\\n\\n2014. 1 Upon her return from West Africa, Lowe did not work at Massage Envy\\n\\nand was not otherwise permitted to keep her massage appointment bookings at\\n\\nMassage Envy.\\n\\nB. Lowe’s Charge and the EEOC’s Investigation\\n\\n In November 2014, Lowe filed a Charge of Discrimination with the EEOC,\\n\\nasserting that Massage Envy terminated her employment because owner Wuchko\\n\\nbelieved that she would come into contact with a person having Ebola while in\\n\\nGhana. Based on that allegation, Lowe claimed that she was discriminated against\\n\\n\\n\\n 1\\n While the West Africa Ebola epidemic spread to other parts of Africa, Europe, and the\\nUnited States, the epicenter of the outbreak was in the countries of Guinea, Sierra Leone, and\\nLiberia in West Africa. 2014-2016 Ebola Outbreak Distribution in West Africa, Centers for\\nDisease Control and Prevention, https://www.cdc.gov/vhf/ebola/history/2014-2016-\\noutbreak/index.html (last visited on Sept. 12, 2019). Owner Wuchko’s fear was unfounded.\\nAlthough Ghana is nearby and also in West Africa, there were no confirmed cases of Ebola in\\nGhana during the 2014 outbreak.\\n 4\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 5 of 33\\n\\n\\nbecause Massage Envy “perceived [her] as disabled or . . . as having [the] potential\\n\\nto become disabled,” in violation of the ADA.\\n\\n The EEOC investigated Lowe’s charge. Almost two years later, on\\n\\nSeptember 6, 2016, the EEOC issued a Letter of Determination finding that there\\n\\nwas “reasonable cause” to believe that Massage Envy terminated Lowe’s\\n\\nemployment because it “regarded” her as disabled, in violation of the ADA. The\\n\\nEEOC invited Massage Envy to engage in conciliation efforts, but those efforts\\n\\nfailed.\\n\\n II. PROCEDURAL HISTORY\\n\\n On April 26, 2017, the EEOC filed this lawsuit, alleging in the operative\\n\\namended complaint that “Ebola is a physical impairment that substantially limits\\n\\nthose infected in one or more major life activity, including, but not limited to,\\n\\ncirculatory function and immune system function.” As such, the EEOC alleged\\n\\nthat: (1) Massage Envy violated the ADA, 42 U.S.C. § 12112(a), by “terminating\\n\\nand not permitting Lowe to return to work upon her return from Ghana because it\\n\\nregarded her as disabled”; and (2) Massage Envy violated the ADA, 42 U.S.C.\\n\\n§ 12112(a) & (b)(4), “by terminating and not permitting Lowe to return to work\\n\\nupon her return from Ghana based upon Massage Envy’s fears and beliefs about\\n\\nEbola and based upon her association with people in Ghana whom Massage Envy\\n\\nbelieved to be disabled by Ebola.”\\n\\n\\n 5\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 6 of 33\\n\\n\\n Later, in the district court proceedings, the EEOC informed the district court\\n\\nthat it was “not alleg[ing] that Massage Envy ‘failed to reinstate or rehire’ Lowe”\\n\\nin its amended complaint. Relying on that representation, the district court\\n\\nconsidered the EEOC’s claims only to the extent they applied to Lowe’s October\\n\\n22 termination, not to any later refusal to rehire her. We do the same on appeal.2\\n\\n On June 20, 2017, Lowe moved to intervene in the lawsuit. In her\\n\\nintervenor complaint, Lowe recounted the same facts surrounding her termination\\n\\nas the EEOC set forth in its amended complaint. Based on those allegations, Lowe\\n\\nclaimed that Massage Envy’s firing of her violated the ADA and the Florida Civil\\n\\nRights Act of 1992 (“FCRA”) because the termination decision was based on\\n\\nunfounded fears and beliefs about Ebola and Lowe’s risk for the disease. Lowe’s\\n\\nclaims were based on the same theory that the EEOC advanced—that Massage\\n\\nEnvy perceived her as having a disability and fired her due to that perceived\\n\\ndisability.\\n\\n Thereafter, in July 2017, Massage Envy moved to dismiss the EEOC’s\\n\\namended complaint for failure to state a claim and failure to exhaust administrative\\n\\nremedies. See Fed. R. Civ. P. 12(b)(6). While that Rule 12(b)(6) motion was\\n\\n\\n 2\\n On appeal, the EEOC argues that the district court erred in cabining its claims to Lowe’s\\ntermination. We will not consider this argument because whatever error, if any, the district court\\ncommitted by not considering the EEOC’s claims as to Massage Envy’s failure to reinstate or\\nrehire Lowe was invited by the EEOC. See United States v. Stone, 139 F.3d 822, 838 (11th Cir.\\n1998) (The doctrine of invited error precludes appellate review “when a party induces or invites\\nthe district court into making an error.”).\\n 6\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 7 of 33\\n\\n\\npending, in October 2017, the EEOC moved to file a second amended complaint,\\n\\nin which it sought to raise an ADA unlawful interference claim. In that new claim,\\n\\nthe EEOC alleged that when owner Wuchko told Lowe that she would be fired if\\n\\nshe did not cancel her Ghana trip, Massage Envy coerced, intimidated, and\\n\\nthreatened Lowe and interfered with her exercise and enjoyment of rights under the\\n\\nADA, in violation of 42 U.S.C. § 12203(b). The EEOC suggested that Lowe’s\\n\\ninterfered-with ADA rights were: (1) the right to a reasonable accommodation if\\n\\nLowe actually developed Ebola; and (2) the right to associate with disabled\\n\\npersons, i.e., people in Ghana with Ebola.\\n\\n In a February 15, 2018 order, the district court: (1) granted Massage Envy’s\\n\\nmotion to dismiss the EEOC’s amended complaint; (2) denied the EEOC’s motion\\n\\nto file a second amended complaint as futile; and (3) directed the clerk to terminate\\n\\nall pending motions as moot, which included Lowe’s still-pending motion to\\n\\nintervene. As to the merits of the ADA claims, the district court dismissed the\\n\\nEEOC’s “regarded as” disabled claim because Massage Envy did not perceive\\n\\nLowe as having Ebola at the time it fired her. In so ruling, the district court\\n\\ndeclined to expand the ADA’s “regarded as having” prong of the disability\\n\\ndefinition to cases like this one, in which an employer fires an employee at a time\\n\\nwhen it “perceives [the] employee to be presently healthy with only the potential to\\n\\nbecome disabled in the future due to voluntary conduct.” The district court also\\n\\n\\n 7\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 8 of 33\\n\\n\\nconcluded that the EEOC’s association claim lacked merit because the EEOC did\\n\\nnot allege that Massage Envy knew that Lowe had an existing or past association\\n\\nwith any person disabled by Ebola at the time it fired her.\\n\\n As to the EEOC’s proposed second amended complaint, the district court\\n\\ndenied the EEOC’s request to bring an unlawful interference claim because, inter\\n\\nalia, any such amendment would be futile, as Lowe had no existing rights under\\n\\nthe ADA when she was fired because she was not disabled and had not associated\\n\\nwith anyone who was disabled. Thereafter, the district court entered final\\n\\njudgment in favor of Massage Envy. This appeal followed.\\n\\n III. STANDARD OF REVIEW\\n\\n We review de novo a district court’s order granting a motion to dismiss for\\n\\nfailure to state a claim. Boyle v. City of Pell City, 866 F.3d 1280, 1286 (11th Cir.\\n\\n2017). “To survive a Rule 12(b)(6) motion to dismiss, a complaint must plead\\n\\n‘enough facts to state a claim to relief that is plausible on its face.’” Ray v. Spirit\\n\\nAirlines, Inc., 836 F.3d 1340, 1347–48 (11th Cir. 2016) (quoting Bell Atl. Corp. v.\\n\\nTwombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)). “A claim is facially\\n\\nplausible when the plaintiff pleads sufficient facts to allow the court to draw the\\n\\nreasonable inference that the defendant is liable for the alleged misconduct.”\\n\\nBoyle, 866 F.3d at 1286.\\n\\n\\n\\n\\n 8\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 9 of 33\\n\\n\\n We also review de novo questions of law, such as the construction of a\\n\\nstatute. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). We “may affirm\\n\\nthe district court’s judgment on any ground that appears in the record, whether or\\n\\nnot that ground was relied upon or even considered by the [district court].”\\n\\nThomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).\\n\\n IV. “REGARDED AS HAVING” A DISABILITY\\n\\n In interpreting the ADA, we are guided by the traditional canons of statutory\\n\\nconstruction. “Our ‘starting point’ is the language of the statute itself.” Harrison\\n\\nv. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1212–14 (11th Cir. 2010).\\n\\nWe “assume that Congress used the words of the statute as they are commonly and\\n\\nordinarily understood and must construe the statute so each of its provisions is\\n\\ngiven full effect.” United States v. McLymont, 45 F.3d 400, 401 (11th Cir. 1995).\\n\\nTo that end, “[w]e do not look at one word or term in isolation, but instead we look\\n\\nto the entire statutory context.” Harrison, 593 F.3d at 1212 (quotations omitted).\\n\\nWe now set forth the statutory text at issue here.\\n\\nA. Statutory Text\\n\\n Under § 12112(a) of the ADA, an employer is generally prohibited from\\n\\n“discriminat[ing] against a qualified individual on the basis of disability in regard\\n\\nto job application procedures, the hiring, advancement, or discharge of employees,\\n\\nemployee compensation, job training, and other terms, conditions, and privileges\\n\\n\\n 9\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 10 of 33\\n\\n\\nof employment.” 42 U.S.C. § 12112(a). To state a disability discrimination claim,\\n\\na claimant must allege that she was a “qualified individual” who suffered an\\n\\nadverse employment action because of her “disability” as those terms are defined\\n\\nby the ADA. Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264, 1267–68\\n\\n(11th Cir. 2014).\\n\\n In § 12102(1), the ADA defines the statutory term “disability,” with respect\\n\\nto an individual, to mean:\\n\\n (A) a physical or mental impairment that substantially limits one or\\n more major life activities of such individual;\\n\\n (B) a record of such an impairment; or\\n\\n (C) being regarded as having such an impairment (as described in\\n paragraph (3)).\\n\\n42 U.S.C. § 12102(1) (emphasis added). “Accordingly, to fall within this\\n\\ndefinition one must have an actual disability (subsection (A)), have a record of a\\n\\ndisability (subsection (B)), or be regarded as having one (subsection (C)).” Sutton\\n\\nv. United Air Lines, Inc., 527 U.S. 471, 478, 119 S. Ct. 2139, 2144 (1999),\\n\\nabrogated on other grounds by the ADA Amendments Act of 2008, Pub. L. No.\\n\\n110-325, 122 Stat. 3553 (2008).\\n\\n In turn, paragraph 3 in § 12102(3)(A), describes “regarded as having such an\\n\\nimpairment,” for purposes of § 12102(1)(C), as follows:\\n\\n For purposes of paragraph (1)(C): . . . An individual meets the\\n requirement of “being regarded as having such an impairment” if the\\n\\n 10\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 11 of 33\\n\\n\\n individual establishes that he or she has been subjected to an action\\n prohibited under [the ADA] because of an actual or perceived physical\\n or mental impairment whether or not the impairment limits or is\\n perceived to limit a major life activity.\\n\\n42 U.S.C. § 12102(3)(A) (emphasis added). This provision does not apply to\\n\\n“impairments that are transitory and minor.” Id. § 12102(3)(B). Taking these\\n\\ndefinitions together, an employee has a “disability” under the ADA when that\\n\\nemployee actually has, or is perceived as having, an impairment that is not\\n\\ntransitory and minor.\\n\\n The relevant time period for assessing the existence of a disability, so as to\\n\\ntrigger the ADA’s protections, is the time of the alleged discriminatory act. See\\n\\nGarrett v. Univ. of Ala. at Birmingham Bd. of Trs., 507 F.3d 1306, 1312 (11th Cir.\\n\\n2007) (assessing parallel provision of the Rehabilitation Act); 3 Cash v. Smith, 231\\n\\nF.3d 1301, 1306 n.5 (11th Cir. 2000) (“The employment action that Cash is\\n\\ncomplaining of occurred in late April and early May of 1998, and we evaluate her\\n\\ndisability as manifested at that time.”); EEOC v. Chevron Phillips Chem. Co., 570\\n\\nF.3d 606, 618 (5th Cir. 2009) (“In an ADA case, the relevant time for assessing the\\n\\nexistence of a disability is the time of the adverse employment action.”).\\n\\n\\n\\n\\n 3\\n The Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. applies the same standards and\\nfollows the same analysis as claims under the ADA. Sutton v. Lader, 185 F.3d 1203, 1207 n.5\\n(11th Cir. 1999).\\n\\n\\n\\n 11\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 12 of 33\\n\\n\\nB. Analysis of “Regarded As Having” a Disability\\n\\n There is no dispute that Lowe was a qualified individual and she suffered an\\n\\nadverse employment action. Rather, the main question is whether Lowe was\\n\\n“disabled” within the meaning of the ADA at the time of Massage Envy’s\\n\\ntermination of her employment, that is, before her trip to Ghana. Lowe\\n\\nundisputedly did not have an actual existing disability or a record of disability\\n\\nwhen she was fired. Thus, the issue here becomes solely whether she was\\n\\n“regarded as having” a disability when fired.\\n\\n The EEOC contends that Lowe meets the “regarded as” prong of the\\n\\ndisability definition because Massage Envy regarded her (or perceived her) as\\n\\nhaving a disability due to its belief that she would contract Ebola in the future\\n\\nwhile traveling in Ghana. In reply, Massage Envy stresses that owner Wuchko did\\n\\nnot perceive Lowe as having Ebola; rather he perceived her as having the potential\\n\\nor possibility of becoming infected in the future if she traveled to Ghana (i.e.,\\n\\nbecoming disabled in the future).\\n\\n For several reasons, we must conclude that the disability definition in the\\n\\nADA does not cover this case where an employer perceives a person to be\\n\\npresently healthy with only a potential to become ill and disabled in the future due\\n\\nto the voluntary conduct of overseas travel. The EEOC’s claim does not fall within\\n\\nthe scope of the “regarded as having” prong of the ADA’s disability definition.\\n\\n\\n 12\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 13 of 33\\n\\n\\n First, we do not read the “regarded as having” prong in § 12102(1)(C), as\\n\\ndescribed in § 12102(3)(A), in isolation. Rather, the ADA’s definition of\\n\\n“disability” in § 12102(1) provides that a disability is a present “physical or mental\\n\\nimpairment,” “a record of such an impairment,” or “being regarded as having such\\n\\nan impairment.” See id. § 12102(1)(A)–(C) (emphasis added). It is well settled\\n\\nthat “impairment” in the first “actual disability” prong, § 12102(1)(A), is limited to\\n\\nimpairments that exist at the time of the adverse employment action and does not\\n\\ninclude impairments that manifest after the alleged discrimination. See Mazzeo,\\n\\n746 F.3d at 1268 (explaining that, for ADA discrimination claims, a plaintiff must\\n\\nshow that she had a disability “at the time of the adverse employment action.”\\n\\n(emphasis added)); Chevron Phillips Chem., 570 F.3d at 618 (“In an ADA case,\\n\\nthe relevant time for assessing the existence of a disability is the time of the\\n\\nadverse employment action.”); Cash, 231 F.3d at 1306 n.5 (providing that a later\\n\\nmanifesting impairment was irrelevant to an ADA claim because courts evaluate\\n\\nan employee’s disability as manifested at the time of the discriminatory\\n\\nemployment action).\\n\\n It follows that “impairment” in the “regarded as” statutory prong,\\n\\n§ 12102(1)(C), has the same meaning as “impairment” in the actual disability\\n\\nprong, § 12102(1)(A). See Ratzlaf v. United States, 510 U.S. 135, 143, 114 S. Ct.\\n\\n655-660 (1994) (“A term appearing in several places in a statutory text is generally\\n\\n\\n 13\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 14 of 33\\n\\n\\nread the same way each time it appears.”); Sullivan v. Stroop, 496 U.S. 478, 484,\\n\\n110 S. Ct. 2499, 2504 (1990) (reciting the well-established proposition that\\n\\n“identical words used in different parts of the same act are intended to have the\\n\\nsame meaning” (internal quotation marks omitted)). This is especially true here\\n\\nwhere § 12102(1)(C) refers to “such an impairment,” which necessarily refers back\\n\\nto § 12102(1)(A). 42 U.S.C. § 12102(1)(A), (C) (emphasis added). In “regarded\\n\\nas” cases, a plaintiff must show that the employer knew that the employee had an\\n\\nactual impairment or perceived the employee to have such an impairment at the\\n\\ntime of the adverse employment action. 42 U.S.C. § 12102(3)(A). Further, the\\n\\nimpairment must not be “transitory and minor.” Id. § 12102(3)(B).\\n\\n Second and similarly, when § 12102(3)(A) is read most naturally, an\\n\\nindividual meets the requirement of being regarded as disabled only if she was\\n\\nsubject to termination “because of an actual or perceived physical or mental\\n\\nimpairment.” See 42 U.S.C. § 12102(3)(A). An employer does not fire or\\n\\notherwise discriminate against an employee “because of” a perceived physical\\n\\nimpairment unless the employer actually perceives that the employee has the\\n\\nimpairment. Section 12102(3)(A) does not, by its terms, extend to an employer’s\\n\\nbelief that an employee might contract or develop an impairment in the future. See\\n\\nEEOC v. BNSF Ry. Co., 902 F.3d 916, 923 (9th Cir. 2018) (agreeing that, under\\n\\n§ 12102(3)(A), for an employer to regard an individual as having a disability, the\\n\\n\\n 14\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 15 of 33\\n\\n\\nemployer “must have regarded him as having a current impairment”); Adair v. City\\n\\nof Muskogee, 823 F.3d 1297, 1306 (10th Cir. 2016) (providing in a § 12102(3)(A)\\n\\ncase, “for a plaintiff alleging disability discrimination to show that the employer\\n\\nregarded h[er] as having an impairment, the plaintiff must show that (1) [s]he has\\n\\nan actual or perceived impairment, (2) that impairment is neither transitory nor\\n\\nminor, and (3) the employer was aware of and therefore perceived the impairment\\n\\nat the time of the alleged discriminatory action.”); Morriss v. BNSF Ry. Co., 817\\n\\nF.3d 1104, 1113 (8th Cir. 2016) (stating for a § 12102(3)(A) claim, “[t]he ADA\\n\\ndoes not prohibit discrimination based on a perception that a physical\\n\\ncharacteristic—as opposed to a physical impairment—may eventually lead to a\\n\\nphysical impairment as defined under the Act. Instead, the plain language of the\\n\\nADA prohibits actions based on an existing impairment or the perception of an\\n\\nexisting impairment.”).\\n\\n Third, we recognize that the ADA directs that “[t]he definition of\\n\\ndisability . . . shall be construed in favor of broad coverage of individuals.” See\\n\\nid. § 12102(4)(A). But that is only “to the maximum extent permitted by the terms\\n\\nof this chapter.” Id. Even construing the disability definition broadly in favor of\\n\\ncoverage, we still conclude that the terms of the ADA protect anyone who\\n\\nexperiences discrimination because of a current, past, or perceived disability—not\\n\\na potential future disability. Id. §§ 12102(1), 12102(3)(A).\\n\\n\\n 15\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 16 of 33\\n\\n\\n Fourth, our conclusion is consistent with the EEOC’s own interpretive\\n\\nguidance, which states that a predisposition to developing an illness or disease is\\n\\nnot a physical impairment. See Harrison, 593 F.3d at 1214 (“[A]lthough\\n\\nadministrative interpretations of an Act by its enforcing agency are not controlling,\\n\\nthey do constitute a body of experience and informed judgment to which\\n\\n[we] . . . may properly resort for guidance.” (internal quotation marks omitted)). In\\n\\nits regulations, the EEOC counsels that “[i]t is important to distinguish between\\n\\nconditions that are impairments and physical, psychological, environmental,\\n\\ncultural, and economic characteristics that are not impairments.” 29 C.F.R. Pt.\\n\\n1630, App. § 1630.2(h). Those regulations further state that “characteristic\\n\\npredisposition to illness or disease” does not constitute a physical impairment\\n\\nunder the ADA. Id. If a predisposition to developing a disease in the future is not\\n\\na physical impairment, by analogy, we do not see how Lowe’s heightened risk of\\n\\ndeveloping the disease Ebola in the future due to her visit to Ghana constitutes a\\n\\nphysical impairment either. As a result, under the facts of this case, Massage Envy\\n\\ndid not perceive Lowe as having a physical impairment within the meaning of the\\n\\nADA when it terminated her employment.\\n\\n The EEOC disagrees, urging instead that the ADA is broad enough to\\n\\nprohibit an employer from firing an employee because the employer perceives that\\n\\nthe employee will imminently contract a disease in the near future. The EEOC\\n\\n\\n 16\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 17 of 33\\n\\n\\nreaches this conclusion by focusing on the present tense of the verbs in the\\n\\n“regarded as” prong of the disability definition in § 12102(1)(C)—“being regarded\\n\\nas having such an impairment”—and the Dictionary Act, which instructs: “[i]n\\n\\ndetermining the meaning of any Act of Congress, unless the context indicates\\n\\notherwise . . . words used in the present tense include the future as well as the\\n\\npresent.” 1 U.S.C. § 1. With the Dictionary Act in hand, the EEOC asserts that we\\n\\nshould read the “regarded as” prong in § 12102(1)(C) to include “being regarded as\\n\\nwill be having such an impairment.” Despite the extraordinarily awkward prose\\n\\nthat results, it is that interpretation, so says the EEOC, that catches the facts of this\\n\\ncase.4 We are not persuaded.\\n\\n While it is true that the phrase “being regarded as having such an\\n\\nimpairment” contains present tense verbs, the ADA’s plain language and context\\n\\nindicates that the Dictionary Act does not apply here as the EEOC suggests. See\\n\\nRowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194,\\n\\n199, 113 S. Ct. 716, 720 (1993) (“‘Context’ [in the Dictionary Act] means the text\\n\\n\\n\\n 4\\n At oral argument, the EEOC also suggested that we should read the “regarded as”\\ndisabled prong as “being regarded as having an imminent impairment.” Although that phrase\\nreads better than the other alternative offered by the EEOC, the Dictionary Act does not\\nauthorize us to add the word “imminent” to a statute wherever we see fit. See Carr v. United\\nStates, 560 U.S. 438, 448, 130 S. Ct. 2229, 2236 (2010) (explaining that section 1 of the\\nDictionary Act “ascribes significance to verb tense” (emphasis added)); Catskill Dev., LLC v.\\nPark Place Entm’t Corp., 547 F.3d 115, 126 (2d Cir. 2008) (relying on the Dictionary Act to read\\nthe verb “is” as “will be” in a provision of the Indian Gaming Regulatory Act, 25 U.S.C.\\n§ 2703(4)).\\n 17\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 18 of 33\\n\\n\\nof the Act of Congress surrounding the word at issue, or the texts of other related\\n\\ncongressional Acts, and this is simply an instance of the word’s ordinary\\n\\nmeaning.”).\\n\\n As noted earlier, § 12102(3)(A) provides the express, specialized definition\\n\\nof “regarded as having such an impairment” for purposes of the ADA. To meet the\\n\\nrequirements of “being regarded” as disabled under § 12102(3)(A), an individual\\n\\nmust establish, in relevant part, that “she has been subjected to an action prohibited\\n\\nunder this chapter because of an actual or perceived physical or mental\\n\\nimpairment.” 42 U.S.C. § 12102(3)(A). Notably, that statutory phrase in\\n\\n§ 12102(3)(A) contains no present tense verb for the Dictionary Act to carry into\\n\\nthe future. Rather, by its terms, for an employee to qualify as “being regarded as”\\n\\ndisabled, the employer must have perceived the employee as having a current\\n\\nexisting impairment at the time of the alleged discrimination.\\n\\n We reject the EEOC’s reading of § 12102(1)(C), as it ignores altogether the\\n\\nADA’s direction in § 12102(3)(A). See Corley v. United States, 556 U.S. 303,\\n\\n314, 129 S. Ct. 1558, 1566 (2009) (noting that it is “one of the most basic” canons\\n\\nof statutory interpretation that “a statute should be construed so that effect is given\\n\\nto all its provisions” (internal quotation marks and citations omitted)). “‘It is the\\n\\nduty of the court to give effect, if possible, to every clause and word of a statute.’”\\n\\n\\n\\n\\n 18\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 19 of 33\\n\\n\\nIn re Failla, 838 F.3d 1170, 1175 (11th Cir. 2016) (quoting Inhabitants of\\n\\nMontclair Twp. v. Ramsdell, 107 U.S. 147, 152, 2 S. Ct. 391, 395 (1883)).\\n\\n And to come full circle, in reading the ADA most naturally, we would\\n\\nexpect “regarded as having such an impairment” in § 12102(1)(C)—the paragraph\\n\\nrelied upon by the EEOC—to retain the same meaning as that phrase is explicitly\\n\\ngiven by its definition in § 12102(3)(A). To be sure, “[i]n all but the most unusual\\n\\nsituations, a single use of a statutory phrase must have a fixed meaning.” Cochise\\n\\nConsultancy, Inc. v. United States ex rel. Hunt, 587 U.S. __, __, 139 S. Ct. 1507,\\n\\n1512 (2019). This is especially so because the two paragraphs cross-reference one\\n\\nanother. Compare 42 U.S.C. § 12102(1)(C) (“being regarded as having such an\\n\\nimpairment (as described in paragraph (3) (emphasis added)), with id.\\n\\n§ 12102(3)(A) (“For purposes of paragraph (1)(C): (A) An individual meets the\\n\\nrequirement of ‘being regarded as having such an impairment’ if the individual\\n\\nestablishes . . . .” (emphasis added)).\\n\\n With these principles in mind, we conclude that the EEOC failed to state a\\n\\n“regarded as” disabled claim because it did not allege that Massage Envy\\n\\nperceived that Lowe had an existing impairment at the time it terminated her\\n\\nemployment. The district court did not err in dismissing the EEOC’s “regarded as”\\n\\nclaim.\\n\\n\\n\\n\\n 19\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 20 of 33\\n\\n\\n V. ASSOCIATION DISCRIMINATION\\n\\n Next, we turn to the EEOC’s claim of association discrimination under the\\n\\nADA. See 42 U.S.C. § 12112(b)(4). In this claim, the EEOC alleged that Massage\\n\\nEnvy violated the ADA by firing Lowe based on “her association with people in\\n\\nGhana whom Massage Envy believed to be disabled by Ebola.”\\n\\n Under § 12112(b)(4), the ADA defines “discriminate” to include “excluding\\n\\nor otherwise denying equal jobs or benefits to a qualified individual because of the\\n\\nknown disability of an individual with whom the qualified individual is known to\\n\\nhave a relationship or association.” 42 U.S.C. § 12112(b)(4).\\n\\n This association discrimination provision “was intended to protect qualified\\n\\nindividuals from adverse job actions based on ‘unfounded stereotypes and\\n\\nassumptions’ arising from the employees’ relationships with particular disabled\\n\\npersons.” Oliveras–Sifre v. Puerto Rico Dep’t of Health, 214 F.3d 23, 26 (1st Cir.\\n\\n2000). Indeed, the provision “was apparently inspired in part by testimony before\\n\\nHouse and Senate Subcommittees pertaining to a woman who was fired from her\\n\\nlong-held job because her employer found out that the woman’s son, who had\\n\\nbecome ill with AIDS, had moved into her house so she could care for him.” Den\\n\\nHartog v. Wasatch Acad., 129 F.3d 1076, 1082 (10th Cir. 1997).\\n\\n To state a prima facie claim for association discrimination, the plaintiff must\\n\\nshow: “(1) that she was subjected to an adverse employment action; (2) that she\\n\\n\\n 20\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 21 of 33\\n\\n\\nwas qualified for the job at that time; (3) that her employer knew at that time that\\n\\nshe had a relative [or associate] with a disability; and (4) that the adverse\\n\\nemployment action occurred under circumstances which raised a reasonable\\n\\ninference that the disability of the relative [or associate] was a determining factor\\n\\nin the employer’s decision.” Wascura v. City of S. Miami, 257 F.3d 1238, 1242\\n\\n(11th Cir. 2001) (internal quotation marks and alteration omitted). As to the third\\n\\nprong, while the nature of the relationship in question need not be familial, see 29\\n\\nC.F.R. § 1630.8, a plaintiff must show an association or relationship with a specific\\n\\ndisabled person or persons. See 42 U.S.C. § 12112(b)(4).\\n\\n Like the district court, we conclude that the EEOC failed to state an\\n\\nassociation discrimination claim under the ADA because it did not plausibly allege\\n\\nthat Massage Envy knew that Lowe had an association with a specific disabled\\n\\nindividual in Ghana when it terminated her employment. As a matter of fact, the\\n\\nonly specific person that Massage Envy knew that Lowe would associate with in\\n\\nGhana was her sister. But the EEOC never alleged that Lowe’s sister had Ebola or\\n\\nthat Massage Envy thought that her sister had Ebola. 5\\n\\n Instead, the EEOC contended, in essence, that Massage Envy believed Lowe\\n\\nmight come into contact with certain unknown individuals while traveling in\\n\\nGhana whom Massage Envy thought might have Ebola. This is too attenuated to\\n\\n\\n 5\\n Lowe’s intervenor complaint does not allege that either.\\n 21\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 22 of 33\\n\\n\\nstate an association discrimination claim under § 12112(b)(4) of the ADA, which\\n\\nrequires both a known association and a known disability. See 42 U.S.C.\\n\\n§ 12112(b)(4) (prohibiting employment discrimination “because of the known\\n\\ndisability of an individual with whom the qualified individual is known to have a\\n\\nrelationship or association” (emphasis added)).\\n\\n Moreover, the EEOC failed to plausibly allege a sufficient association or\\n\\nrelationship with said unknown individuals with Ebola in any event. Lowe\\n\\ncertainly was not traveling to Ghana to assist with the Ebola epidemic. See, e.g.,\\n\\n29 C.F.R. Pt. 1630, App. § 1630.8 (suggesting that an employee doing volunteer\\n\\nwork with people with AIDS might be the type of “association” contemplated by\\n\\n§ 12112(b)(4) of the ADA). And, of course, there was no Ebola outbreak in Ghana\\n\\nin the first place. But even if some people in Ghana did have the disease, the\\n\\nEEOC has merely alleged that Lowe might come into contact with those\\n\\nindividuals while traveling in the country. That is too loose of an association for\\n\\npurposes of a claim under § 12112(b)(4).\\n\\n In so concluding, we are persuaded by the Fourth Circuit’s decision in\\n\\nFreilich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (4th Cir. 2002). In\\n\\nFreilich, the defendant hospital terminated the plaintiff physician. Id. at 209. In\\n\\nher complaint, the physician raised, inter alia, a claim for association\\n\\ndiscrimination under the ADA, alleging that she was discriminated against because\\n\\n\\n 22\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 23 of 33\\n\\n\\nshe refused to end her advocacy on behalf of her dialysis patients and was denied\\n\\nvarious privileges because of her “association with and her relationship to patients\\n\\nwith disabilities.” Id. at 216 (internal quotation marks omitted). The Fourth\\n\\nCircuit disagreed, concluding that the physician’s complaint did not state an\\n\\nassociation discrimination claim because she alleged only “a loose association with\\n\\ndisabled patients.” Id. The Fourth Circuit reasoned that “such generalized\\n\\nreferences to association with disabled persons or to advocacy for a group of\\n\\ndisabled persons are not sufficient to state a claim for association[] discrimination\\n\\nunder the ADA.” Id. As “[e]very hospital employee can allege at least a loose\\n\\nassociation with disabled patients,” allowing the plaintiff physician “to proceed on\\n\\nsuch a basis would arm every hospital employee with a potential ADA complaint.”\\n\\nId. “A step of that magnitude is for Congress, not this court, to take.” Id.\\n\\n In this case, the EEOC has alleged an association even “looser” than the\\n\\nphysician and patient relationship in Freilich. Here, the EEOC’s entire claim is\\n\\nbased on Massage Envy’s concern that Lowe might come across some unknown\\n\\nperson with Ebola while traveling in Ghana. But the EEOC has not cited to, nor\\n\\nare we aware of, a single case involving an association discrimination claim\\n\\npremised on an employer’s belief about an employee’s potential casual association\\n\\nwith unknown disabled people.\\n\\n\\n\\n\\n 23\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 24 of 33\\n\\n\\n At the end of the day, we need not, and do not, weigh in on whether it was\\n\\nunfair or misguided for Massage Envy to fire Lowe after she refused to cancel her\\n\\ntrip to Ghana. As we have repeatedly and emphatically held, “[a]n employer may\\n\\nfire an employee for a good reason, a bad reason, a reason based on erroneous\\n\\nfacts, or for no reason at all, as long as its action is not for a discriminatory reason”\\n\\ncontrary to federal law. Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253, 1262\\n\\n(11th Cir. 2001) (internal quotation marks omitted). Our sole concern is whether\\n\\nMassage Envy violated the ADA. On that score, the answer is no. The district\\n\\ncourt correctly dismissed this claim.\\n\\n VI. UNLAWFUL INTERFERENCE\\n\\n On appeal, the EEOC does not raise any arguments as to its claim that\\n\\nMassage Envy interfered with Lowe’s exercise and enjoyment of her rights under\\n\\nthe ADA. However, Lowe does, arguing that the district court wrongly concluded\\n\\nthat it would be futile to allow the EEOC to amend its complaint to add this\\n\\ninterference claim. 6 We disagree.\\n\\n Under the Federal Rules of Civil Procedure, a district court “should freely\\n\\ngive leave [to amend a complaint] when justice so requires.” Fed. R. Civ. P.\\n\\n\\n\\n\\n 6\\n We review for abuse of discretion a district court’s refusal to grant leave to file an\\namended complaint, although we review de novo the “legal conclusion of whether a particular\\namendment to the complaint would be futile.” Harris v. Ivax Corp., 182 F.3d 799, 802 (11th Cir.\\n1999).\\n 24\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 25 of 33\\n\\n\\n15(a)(2). But a district court may deny a motion for leave to amend as futile\\n\\n“when the complaint as amended would still be properly dismissed.” Cockrell v.\\n\\nSparks, 510 F.3d 1307, 1310 (11th Cir. 2007).\\n\\n The district court properly denied the EEOC’s motion to file a second\\n\\namended complaint because its interference claim would have been subject to\\n\\ndismissal as a matter of law for failure to state a claim. 7 Under the ADA’s anti-\\n\\ninterference provision, it is “unlawful to coerce, intimidate, threaten, or interfere\\n\\nwith any individual in the exercise or enjoyment of, or on account of his or her\\n\\nhaving exercised or enjoyed, or on account of his or her having aided or\\n\\nencouraged any other individual in the exercise or enjoyment of, any right granted\\n\\nor protected by [the ADA].” 42 U.S.C. § 12203(b). And the EEOC’s interference\\n\\nclaim tracked that language, alleging that, when owner Wuchko told Lowe that she\\n\\nwould be fired if she did not cancel her Ghana trip, Massage Envy coerced,\\n\\nintimidated, and threatened Lowe and interfered with her exercise and enjoyment\\n\\nof rights under the ADA, in violation of 42 U.S.C. § 12203(b).\\n\\n The problem with the EEOC’s interference claim, however, is that, when\\n\\nMassage Envy fired Lowe, she had no existing rights under the ADA. Of course,\\n\\n\\n 7\\n The district court concluded, alternatively, that the interference claim was also due to be\\ndismissed for failure to exhaust administrative remedies. On appeal, the EEOC submits that it is\\nnot required to exhaust administrative remedies before filing suit, citing EEOC v. Caterpillar,\\nInc., 409 F.3d 831 (7th Cir. 2005). Because we agree with the district court that the interference\\nclaim fails to state a claim upon which relief can be granted, we need not address the court’s\\nalternative basis for dismissing it based on failure to exhaust administrative remedies.\\n 25\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 26 of 33\\n\\n\\nLowe was not actually disabled by Ebola and thus had no right to a reasonable\\n\\naccommodation under the ADA. She had not associated with, or even planned to\\n\\nassociate with, any known person disabled by Ebola either. Because Lowe had no\\n\\nrights under the ADA, Massage Envy could not and did not interfere with her\\n\\nexercise or enjoyment of those rights. Consequently, the EEOC could not have\\n\\nstated a plausible interference claim, and any amendment seeking to add such a\\n\\nclaim to the complaint would have been futile.\\n\\n VII. LOWE’S INTERVENOR COMPLAINT\\n\\n On appeal, Lowe also argues that the district court erred in not allowing her\\n\\nto intervene in this lawsuit.8 Lowe contends that, although she timely moved to\\n\\nintervene, the district court did not rule on the merits of her motion. Rather, after\\n\\ndetermining that the EEOC’s claims were due to be dismissed with prejudice, it\\n\\ndirected the clerk to terminate all pending motions as moot and close the case.\\n\\nLowe’s motion to intervene was among those terminated motions. We agree with\\n\\nLowe that the district court should have addressed the merits of her motion to\\n\\nintervene, rather than terminating it as moot.\\n\\n Although district courts enjoy broad discretion in deciding how best to\\n\\nmanage the cases before them, that discretion is not unfettered. Chudasama v.\\n\\n 8\\n We review the denial of a motion to intervene as of right de novo. Purcell v.\\nBankAtlantic Fin. Corp., 85 F.3d 1508, 1512 (11th Cir. 1996).\\n\\n\\n\\n 26\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 27 of 33\\n\\n\\nMazda Motor Corp., 123 F.3d 1353, 1366–67 (11th Cir. 1997). “When a litigant’s\\n\\nrights are materially prejudiced by the district court’s mismanagement of a case,\\n\\nwe must redress the [error].” Id. at 1367. As we have explained, “[f]ailure to\\n\\nconsider and rule on significant pretrial motions before issuing dispositive orders\\n\\ncan be an abuse of discretion” or constitute legal error. Id.\\n\\n Federal Rule of Civil Procedure 24(a)(1) states that “[o]n timely motion, the\\n\\ncourt must permit anyone to intervene who . . . is given an unconditional right to\\n\\nintervene by a federal statute.” Fed. R. Civ. P. 24(a). Under Title VII, 42 U.S.C.\\n\\n§ 2000e-5(f), as the aggrieved employee, Lowe had a right to intervene in this\\n\\naction brought by the EEOC. See 42 U.S.C. § 2000e-5(f)(1). The language of\\n\\n§ 2000e-5(f)(1) unambiguously gives employees an unconditional right to\\n\\nintervene in EEOC enforcement actions. Id. (“The person or persons aggrieved\\n\\nshall have the right to intervene in a civil action brought by the\\n\\nCommission . . . .”). In fact, once the EEOC files suit on its own, “the employee\\n\\nhas no independent cause of action.” EEOC v. Waffle House, Inc., 534 U.S. 279,\\n\\n291, 122 S. Ct. 754, 763 (2002). The employee’s only option is to intervene in the\\n\\nEEOC’s suit. Id.\\n\\n Here, Lowe timely filed her motion to intervene and she had an\\n\\nunconditional statutory right to intervene in this lawsuit. The district court thus\\n\\nhad no discretion to deny her intervention under Rule 24(a). By failing to consider\\n\\n\\n 27\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 28 of 33\\n\\n\\nand rule on the merits of Lowe’s motion before dismissing the EEOC’s complaint,\\n\\nthe district court effectively circumvented the mandates of both Rule 24(a) and\\n\\n§ 2000e-5(f). That was error. The district court should have considered the merits\\n\\nof Lowe’s motion to intervene.\\n\\n Nevertheless, because we have affirmed the district court’s dismissal of each\\n\\nof the EEOC’s claims, any error by the district court in declining to rule on Lowe’s\\n\\nmotion to intervene was harmless. The standard for harmless error is whether the\\n\\ncomplaining party’s substantial rights were infringed upon. United States v. Mar.\\n\\nLife Caribbean Ltd., 913 F.3d 1027, 1033 (11th Cir. 2019); Haney v. Mizell Mem’l\\n\\nHosp., 744 F.2d 1467, 1475 (11th Cir. 1984). The error by the district court\\n\\nprejudiced Lowe only if there is a “reasonable likelihood that the outcome would\\n\\nhave been different” if the district court had permitted Lowe to intervene in the\\n\\nlawsuit before proceeding to decide the merits of the EEOC’s claims. See Mar.\\n\\nLife Caribbean Ltd., 913 F.3d at 1033 (internal quotation marks omitted).\\n\\n Lowe was not prejudiced because there is no reasonable likelihood that the\\n\\noutcome of this proceeding would have been different had she intervened. In her\\n\\nintervenor complaint, Lowe advanced the exact same factual allegations, claims,\\n\\nand arguments that the EEOC had already made itself in the lawsuit. Just like the\\n\\nEEOC, Lowe claimed that Massage Envy perceived her as having a disability\\n\\n(Ebola) and fired her due to that perceived disability (Ebola), in violation of the\\n\\n\\n 28\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 29 of 33\\n\\n\\nADA. Although Lowe brought that “regarded as” disabled claim under both the\\n\\nADA and the FCRA, “disability-discrimination claims under the FCRA are\\n\\nanalyzed using the same framework as ADA claims.” Holly v. Clairson Indus.,\\n\\nLLC, 492 F.3d 1247, 1255 (11th Cir. 2007). Therefore, if the district court had\\n\\nallowed Lowe to intervene, the court would have ultimately dismissed Lowe’s\\n\\n“regarded as” disabled claim for the same reasons that it dismissed the EEOC’s\\n\\n“regarded as” disabled claim. The outcome of the proceeding would not have\\n\\ndiffered.\\n\\n In turn, we have affirmed on appeal the district court’s dismissal of the\\n\\nEEOC’s “regarded as” disabled claim, as well as its association discrimination and\\n\\ninterference claims. And in so ruling, we have considered every issue that Lowe\\n\\nraised in her briefing, including her vigorous arguments that the district court erred\\n\\nin dismissing all three of the EEOC’s ADA claims. For all of these reasons, Lowe\\n\\nsuffered no prejudice by the district court not allowing her to intervene in this\\n\\nproceeding. In light of these factual circumstances, we affirm the district court’s\\n\\ndismissal of Lowe’s motion to intervene because any error the court committed by\\n\\nfailing to address the merits of her motion was harmless.\\n\\n VIII. CONCLUSION\\n\\n\\n\\n\\n 29\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 30 of 33\\n\\n\\n For the foregoing reasons, we must affirm the district court’s final judgment\\n\\nin favor of Massage Envy.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 30\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 31 of 33\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4437799/\", \"author_raw\": \"HULL, Circuit Judge:\"}, {\"author\": \"JORDAN, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"JORDAN, Circuit Judge, concurring.\\n\\n If we assume the facts alleged in the complaint are true, Mr. Wuchko engaged\\n\\nin the sort of stereotyping that the ADA was meant to prevent when he fired Ms.\\n\\nLowe because she refused to cancel her trip to Ghana to visit her sister. See, e.g.,\\n\\nRoss v. Campbell Soup Co., 237 F.3d 701, 707 (6th Cir. 2001) (“The ADA was\\n\\nenacted, in part, to eliminate the sort of stereotyping that allowed employers to see\\n\\ntheir employees primarily as their disabilities and not as persons differently abled\\n\\nfrom themselves.”); Lex Larson, 9 Employment Discrimination §153.09[3] (2d ed.\\n\\n2019) (explaining that the ADA, among other things, was meant to target\\n\\n“ignorance-based employment discrimination”). From a policy perspective, then,\\n\\nthe position of the EEOC and Ms. Lowe on the “regarded as having” language in 42\\n\\nU.S.C. §§ 12102(1)(C) & 12102(3)(A)—that the phrase encompasses a decision\\n\\nmade by an employer based on its perception that an employee is going to suffer or\\n\\nexperience a disability in the future—makes a lot of sense. A couple of district\\n\\ncourts, in fact, have recently agreed with the reading of the statutory language\\n\\nadvocated by the EEOC and Ms. Lowe. See Shell v. Burlington N. Santa Fe Ry. Co.,\\n\\n2018 WL 1156249, *4–*5 (N.D. Ill. Mar. 5, 2018); EEOC v. Amsted Rail Co., Inc.,\\n\\n280 F. Supp. 3d 1141, 1150–51 (S.D. Ill. 2017). See also EEOC v. Rockwell Int’l\\n\\nCorp., 243 F.3d 1012, 1018 (7th Cir. 2001) (Wood, J., dissenting) (dicta).\\n\\n\\n\\n\\n 31\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 32 of 33\\n\\n\\n But in my view the court correctly concludes that the “regarding as having”\\n\\nlanguage is best read to cover only an employer’s perception that an employee has\\n\\nan existing (i.e., current) disability. Under the circumstances, an appeal to one of\\n\\nthe ADA’s motivating purposes “fail[s] to overcome the clear statutory language.”\\n\\nTrump v. Hawaii, 138 S. Ct. 2392, 2408 (2018). See also Mertens v. Hewitt Assocs,\\n\\n508 U.S. 248, 261 (1993) (“[V]ague notions of a statute’s ‘basic purpose’ are\\n\\nnonetheless inadequate to overcome the words of its text regarding the specific issue\\n\\nunder consideration.”) (emphasis deleted). I therefore join Parts I–V of the court’s\\n\\nopinion.\\n\\n With respect to Part VI, which addresses the EEOC’s motion for leave to\\n\\namend to assert an unlawful interference claim, I agree with everything except\\n\\nfootnote 7. Unlike the court, I would decide the important question of whether the\\n\\nEEOC is required to exhaust administrative remedies (and satisfy all that the\\n\\nexhaustion doctrine entails) before filing suit. And I would hold, like the Seventh\\n\\nCircuit, that when the EEOC is the plaintiff, it can assert any claims it believes are\\n\\nwarranted, and the doctrine of exhaustion of administrative remedies does not apply:\\n\\n [E]xhaustion of administrative remedies is an issue when\\n the suit is brought by a private party but not when the\\n Commission is the plaintiff. Were the private party\\n permitted to add claims that had not been presented in the\\n administrative charge filed with the EEOC, the\\n Commission’s informal procedures for resolving\\n discrimination charges . . . would be by-passed, in\\n derogation of the statutory scheme. That is not an issue\\n 32\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 33 of 33\\n\\n\\n when the EEOC itself is the plaintiff, which is why a suit\\n by the EEOC is not confined ‘to claims typified by those\\n of the charging party[.]’\\n\\n EEOC v. Caterpillar, Inc., 409 F.3d 831, 832–33 (7th Cir. 2005) (citations\\n\\nomitted) (quoting General Tel. Co. v. EEOC, 446 U.S. 318, 331 (1980)).\\n\\n\\n\\n\\n 33\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4437799/\", \"author_raw\": \"JORDAN, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"JORDAN"},"judge2":{"kind":"string","value":"GRANT"},"judge3":{"kind":"string","value":"HULL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JORDAN\": \", Circuit\", \"GRANT\": \", Circuit\", \"HULL\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4660546/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Kimberly Lowe v. STME, LLC\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-09-12\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-11121 Date Filed: 09/12/2019 Page: 1 of 33\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n Nos. 18-11121, No. 18-12277\n ________________________\n\n D.C. Docket No. 8:17-cv-00977-MSS-CPT\n\n\n\nEQUAL EMPLOYMENT OPPORTUNITY COMMISSION,\n\n Plaintiff-Appellant,\n\nKIMBERLY LOWE,\n\n Intervenor-Appellant,\n\n versus\n\nSTME, LLC,\nd.b.a. Massage Envy-South Tampa,\n\n Defendant-Appellee.\n\n ________________________\n\n Appeals from the United States District Court\n for the Middle District of Florida\n ________________________\n\n (September 12, 2019)\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 2 of 33\n\n\nBefore JORDAN, GRANT and HULL, Circuit Judges.\n\nHULL, Circuit Judge:\n\n In this consolidated appeal, the plaintiff Equal Employment Opportunity\n\nCommission (“EEOC”) and intervenor Kimberly Lowe appeal the entry of\n\njudgment for defendant STME, LLC, d.b.a. Massage Envy-South Tampa\n\n(“Massage Envy”), on their employment discrimination claims brought under the\n\nAmericans with Disabilities Act of 1990 (“ADA”), as amended by the ADA\n\nAmendments Act of 2009. Although the EEOC brought only disability\n\ndiscrimination claims, it is undisputed that Lowe was not actually disabled when\n\nMassage Envy terminated her employment. The EEOC, however, alleged that\n\nMassage Envy violated the ADA because it fired Lowe when she refused to cancel\n\nher trip to Ghana, a country in West Africa. Massage Envy’s stated reason for the\n\ntermination was its fear that Lowe might contract and later develop Ebola due to\n\nher Ghana travel. This case involves issues of first impression as to the meaning of\n\n“regarded as having such an impairment,” which is a statutory phrase contained in\n\n42 U.S.C. § 12102(1)(C).\n\n After review and oral argument, we conclude that, even construing the\n\nstatute broadly, the terms of the ADA protect persons who experience\n\ndiscrimination because of a current, past, or perceived disability—not because of a\n\n\n\n\n 2\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 3 of 33\n\n\npotential future disability that a healthy person may experience later. Accordingly,\n\nwe affirm the district court’s final judgment in favor of defendant Massage Envy.\n\n I. FACTUAL BACKGROUND\n\n Because this appeal arises at the motion-to-dismiss stage, we accept as true\n\nthe facts as alleged in the EEOC’s complaint. See Bailey v. Wheeler, 843 F.3d\n\n473, 480 (11th Cir. 2016).\n\nA. Lowe’s Employment at Massage Envy\n\n Massage Envy is a wellness franchise that offers massage and skin care\n\nservices. In January 2012, Kimberly Lowe began working as a massage therapist\n\nat a Massage Envy located in Tampa, Florida. At all times relevant to this case,\n\nLowe did not have a disability. Rather, she was both capable of performing her job\n\nduties and did perform her job duties in a satisfactory manner.\n\n In September 2014, Lowe asked Massage Envy for time off so that she could\n\nvisit her sister in Ghana, a country located in West Africa. Massage Envy’s\n\nbusiness manager, Roxanna Iorio, initially approved Lowe’s request. However, on\n\nOctober 22, 2014, three days before her scheduled trip, one of Massage Envy’s\n\nowners, Ronald Wuchko, met with Lowe and told her that she would be fired if she\n\nwent ahead with her travel plans.\n\n Owner Wuchko was concerned that Lowe would become infected with the\n\nEbola virus if she traveled to Ghana and would “bring it home to Tampa and infect\n\n\n 3\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 4 of 33\n\n\neveryone.” At that time in 2014, there was an Ebola epidemic in Guinea, Liberia,\n\nand Sierra Leone, three other nearby countries in West Africa. According to\n\nWuchko, he was worried about the “potentially catastrophic consequences that an\n\noutbreak of Ebola could pose to America.” Because Lowe refused to cancel her\n\ntrip, Wuchko terminated her employment during that October 22 meeting and\n\nbefore she left.\n\n Lowe then traveled to Ghana as planned. She did not contract Ebola while\n\nthere. In fact, as it turned out, there was no Ebola outbreak at all in Ghana in\n\n2014. 1 Upon her return from West Africa, Lowe did not work at Massage Envy\n\nand was not otherwise permitted to keep her massage appointment bookings at\n\nMassage Envy.\n\nB. Lowe’s Charge and the EEOC’s Investigation\n\n In November 2014, Lowe filed a Charge of Discrimination with the EEOC,\n\nasserting that Massage Envy terminated her employment because owner Wuchko\n\nbelieved that she would come into contact with a person having Ebola while in\n\nGhana. Based on that allegation, Lowe claimed that she was discriminated against\n\n\n\n 1\n While the West Africa Ebola epidemic spread to other parts of Africa, Europe, and the\nUnited States, the epicenter of the outbreak was in the countries of Guinea, Sierra Leone, and\nLiberia in West Africa. 2014-2016 Ebola Outbreak Distribution in West Africa, Centers for\nDisease Control and Prevention, https://www.cdc.gov/vhf/ebola/history/2014-2016-\noutbreak/index.html (last visited on Sept. 12, 2019). Owner Wuchko’s fear was unfounded.\nAlthough Ghana is nearby and also in West Africa, there were no confirmed cases of Ebola in\nGhana during the 2014 outbreak.\n 4\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 5 of 33\n\n\nbecause Massage Envy “perceived [her] as disabled or . . . as having [the] potential\n\nto become disabled,” in violation of the ADA.\n\n The EEOC investigated Lowe’s charge. Almost two years later, on\n\nSeptember 6, 2016, the EEOC issued a Letter of Determination finding that there\n\nwas “reasonable cause” to believe that Massage Envy terminated Lowe’s\n\nemployment because it “regarded” her as disabled, in violation of the ADA. The\n\nEEOC invited Massage Envy to engage in conciliation efforts, but those efforts\n\nfailed.\n\n II. PROCEDURAL HISTORY\n\n On April 26, 2017, the EEOC filed this lawsuit, alleging in the operative\n\namended complaint that “Ebola is a physical impairment that substantially limits\n\nthose infected in one or more major life activity, including, but not limited to,\n\ncirculatory function and immune system function.” As such, the EEOC alleged\n\nthat: (1) Massage Envy violated the ADA, 42 U.S.C. § 12112(a), by “terminating\n\nand not permitting Lowe to return to work upon her return from Ghana because it\n\nregarded her as disabled”; and (2) Massage Envy violated the ADA, 42 U.S.C.\n\n§ 12112(a) & (b)(4), “by terminating and not permitting Lowe to return to work\n\nupon her return from Ghana based upon Massage Envy’s fears and beliefs about\n\nEbola and based upon her association with people in Ghana whom Massage Envy\n\nbelieved to be disabled by Ebola.”\n\n\n 5\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 6 of 33\n\n\n Later, in the district court proceedings, the EEOC informed the district court\n\nthat it was “not alleg[ing] that Massage Envy ‘failed to reinstate or rehire’ Lowe”\n\nin its amended complaint. Relying on that representation, the district court\n\nconsidered the EEOC’s claims only to the extent they applied to Lowe’s October\n\n22 termination, not to any later refusal to rehire her. We do the same on appeal.2\n\n On June 20, 2017, Lowe moved to intervene in the lawsuit. In her\n\nintervenor complaint, Lowe recounted the same facts surrounding her termination\n\nas the EEOC set forth in its amended complaint. Based on those allegations, Lowe\n\nclaimed that Massage Envy’s firing of her violated the ADA and the Florida Civil\n\nRights Act of 1992 (“FCRA”) because the termination decision was based on\n\nunfounded fears and beliefs about Ebola and Lowe’s risk for the disease. Lowe’s\n\nclaims were based on the same theory that the EEOC advanced—that Massage\n\nEnvy perceived her as having a disability and fired her due to that perceived\n\ndisability.\n\n Thereafter, in July 2017, Massage Envy moved to dismiss the EEOC’s\n\namended complaint for failure to state a claim and failure to exhaust administrative\n\nremedies. See Fed. R. Civ. P. 12(b)(6). While that Rule 12(b)(6) motion was\n\n\n 2\n On appeal, the EEOC argues that the district court erred in cabining its claims to Lowe’s\ntermination. We will not consider this argument because whatever error, if any, the district court\ncommitted by not considering the EEOC’s claims as to Massage Envy’s failure to reinstate or\nrehire Lowe was invited by the EEOC. See United States v. Stone, 139 F.3d 822, 838 (11th Cir.\n1998) (The doctrine of invited error precludes appellate review “when a party induces or invites\nthe district court into making an error.”).\n 6\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 7 of 33\n\n\npending, in October 2017, the EEOC moved to file a second amended complaint,\n\nin which it sought to raise an ADA unlawful interference claim. In that new claim,\n\nthe EEOC alleged that when owner Wuchko told Lowe that she would be fired if\n\nshe did not cancel her Ghana trip, Massage Envy coerced, intimidated, and\n\nthreatened Lowe and interfered with her exercise and enjoyment of rights under the\n\nADA, in violation of 42 U.S.C. § 12203(b). The EEOC suggested that Lowe’s\n\ninterfered-with ADA rights were: (1) the right to a reasonable accommodation if\n\nLowe actually developed Ebola; and (2) the right to associate with disabled\n\npersons, i.e., people in Ghana with Ebola.\n\n In a February 15, 2018 order, the district court: (1) granted Massage Envy’s\n\nmotion to dismiss the EEOC’s amended complaint; (2) denied the EEOC’s motion\n\nto file a second amended complaint as futile; and (3) directed the clerk to terminate\n\nall pending motions as moot, which included Lowe’s still-pending motion to\n\nintervene. As to the merits of the ADA claims, the district court dismissed the\n\nEEOC’s “regarded as” disabled claim because Massage Envy did not perceive\n\nLowe as having Ebola at the time it fired her. In so ruling, the district court\n\ndeclined to expand the ADA’s “regarded as having” prong of the disability\n\ndefinition to cases like this one, in which an employer fires an employee at a time\n\nwhen it “perceives [the] employee to be presently healthy with only the potential to\n\nbecome disabled in the future due to voluntary conduct.” The district court also\n\n\n 7\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 8 of 33\n\n\nconcluded that the EEOC’s association claim lacked merit because the EEOC did\n\nnot allege that Massage Envy knew that Lowe had an existing or past association\n\nwith any person disabled by Ebola at the time it fired her.\n\n As to the EEOC’s proposed second amended complaint, the district court\n\ndenied the EEOC’s request to bring an unlawful interference claim because, inter\n\nalia, any such amendment would be futile, as Lowe had no existing rights under\n\nthe ADA when she was fired because she was not disabled and had not associated\n\nwith anyone who was disabled. Thereafter, the district court entered final\n\njudgment in favor of Massage Envy. This appeal followed.\n\n III. STANDARD OF REVIEW\n\n We review de novo a district court’s order granting a motion to dismiss for\n\nfailure to state a claim. Boyle v. City of Pell City, 866 F.3d 1280, 1286 (11th Cir.\n\n2017). “To survive a Rule 12(b)(6) motion to dismiss, a complaint must plead\n\n‘enough facts to state a claim to relief that is plausible on its face.’” Ray v. Spirit\n\nAirlines, Inc., 836 F.3d 1340, 1347–48 (11th Cir. 2016) (quoting Bell Atl. Corp. v.\n\nTwombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)). “A claim is facially\n\nplausible when the plaintiff pleads sufficient facts to allow the court to draw the\n\nreasonable inference that the defendant is liable for the alleged misconduct.”\n\nBoyle, 866 F.3d at 1286.\n\n\n\n\n 8\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 9 of 33\n\n\n We also review de novo questions of law, such as the construction of a\n\nstatute. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). We “may affirm\n\nthe district court’s judgment on any ground that appears in the record, whether or\n\nnot that ground was relied upon or even considered by the [district court].”\n\nThomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).\n\n IV. “REGARDED AS HAVING” A DISABILITY\n\n In interpreting the ADA, we are guided by the traditional canons of statutory\n\nconstruction. “Our ‘starting point’ is the language of the statute itself.” Harrison\n\nv. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1212–14 (11th Cir. 2010).\n\nWe “assume that Congress used the words of the statute as they are commonly and\n\nordinarily understood and must construe the statute so each of its provisions is\n\ngiven full effect.” United States v. McLymont, 45 F.3d 400, 401 (11th Cir. 1995).\n\nTo that end, “[w]e do not look at one word or term in isolation, but instead we look\n\nto the entire statutory context.” Harrison, 593 F.3d at 1212 (quotations omitted).\n\nWe now set forth the statutory text at issue here.\n\nA. Statutory Text\n\n Under § 12112(a) of the ADA, an employer is generally prohibited from\n\n“discriminat[ing] against a qualified individual on the basis of disability in regard\n\nto job application procedures, the hiring, advancement, or discharge of employees,\n\nemployee compensation, job training, and other terms, conditions, and privileges\n\n\n 9\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 10 of 33\n\n\nof employment.” 42 U.S.C. § 12112(a). To state a disability discrimination claim,\n\na claimant must allege that she was a “qualified individual” who suffered an\n\nadverse employment action because of her “disability” as those terms are defined\n\nby the ADA. Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264, 1267–68\n\n(11th Cir. 2014).\n\n In § 12102(1), the ADA defines the statutory term “disability,” with respect\n\nto an individual, to mean:\n\n (A) a physical or mental impairment that substantially limits one or\n more major life activities of such individual;\n\n (B) a record of such an impairment; or\n\n (C) being regarded as having such an impairment (as described in\n paragraph (3)).\n\n42 U.S.C. § 12102(1) (emphasis added). “Accordingly, to fall within this\n\ndefinition one must have an actual disability (subsection (A)), have a record of a\n\ndisability (subsection (B)), or be regarded as having one (subsection (C)).” Sutton\n\nv. United Air Lines, Inc., 527 U.S. 471, 478, 119 S. Ct. 2139, 2144 (1999),\n\nabrogated on other grounds by the ADA Amendments Act of 2008, Pub. L. No.\n\n110-325, 122 Stat. 3553 (2008).\n\n In turn, paragraph 3 in § 12102(3)(A), describes “regarded as having such an\n\nimpairment,” for purposes of § 12102(1)(C), as follows:\n\n For purposes of paragraph (1)(C): . . . An individual meets the\n requirement of “being regarded as having such an impairment” if the\n\n 10\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 11 of 33\n\n\n individual establishes that he or she has been subjected to an action\n prohibited under [the ADA] because of an actual or perceived physical\n or mental impairment whether or not the impairment limits or is\n perceived to limit a major life activity.\n\n42 U.S.C. § 12102(3)(A) (emphasis added). This provision does not apply to\n\n“impairments that are transitory and minor.” Id. § 12102(3)(B). Taking these\n\ndefinitions together, an employee has a “disability” under the ADA when that\n\nemployee actually has, or is perceived as having, an impairment that is not\n\ntransitory and minor.\n\n The relevant time period for assessing the existence of a disability, so as to\n\ntrigger the ADA’s protections, is the time of the alleged discriminatory act. See\n\nGarrett v. Univ. of Ala. at Birmingham Bd. of Trs., 507 F.3d 1306, 1312 (11th Cir.\n\n2007) (assessing parallel provision of the Rehabilitation Act); 3 Cash v. Smith, 231\n\nF.3d 1301, 1306 n.5 (11th Cir. 2000) (“The employment action that Cash is\n\ncomplaining of occurred in late April and early May of 1998, and we evaluate her\n\ndisability as manifested at that time.”); EEOC v. Chevron Phillips Chem. Co., 570\n\nF.3d 606, 618 (5th Cir. 2009) (“In an ADA case, the relevant time for assessing the\n\nexistence of a disability is the time of the adverse employment action.”).\n\n\n\n\n 3\n The Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. applies the same standards and\nfollows the same analysis as claims under the ADA. Sutton v. Lader, 185 F.3d 1203, 1207 n.5\n(11th Cir. 1999).\n\n\n\n 11\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 12 of 33\n\n\nB. Analysis of “Regarded As Having” a Disability\n\n There is no dispute that Lowe was a qualified individual and she suffered an\n\nadverse employment action. Rather, the main question is whether Lowe was\n\n“disabled” within the meaning of the ADA at the time of Massage Envy’s\n\ntermination of her employment, that is, before her trip to Ghana. Lowe\n\nundisputedly did not have an actual existing disability or a record of disability\n\nwhen she was fired. Thus, the issue here becomes solely whether she was\n\n“regarded as having” a disability when fired.\n\n The EEOC contends that Lowe meets the “regarded as” prong of the\n\ndisability definition because Massage Envy regarded her (or perceived her) as\n\nhaving a disability due to its belief that she would contract Ebola in the future\n\nwhile traveling in Ghana. In reply, Massage Envy stresses that owner Wuchko did\n\nnot perceive Lowe as having Ebola; rather he perceived her as having the potential\n\nor possibility of becoming infected in the future if she traveled to Ghana (i.e.,\n\nbecoming disabled in the future).\n\n For several reasons, we must conclude that the disability definition in the\n\nADA does not cover this case where an employer perceives a person to be\n\npresently healthy with only a potential to become ill and disabled in the future due\n\nto the voluntary conduct of overseas travel. The EEOC’s claim does not fall within\n\nthe scope of the “regarded as having” prong of the ADA’s disability definition.\n\n\n 12\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 13 of 33\n\n\n First, we do not read the “regarded as having” prong in § 12102(1)(C), as\n\ndescribed in § 12102(3)(A), in isolation. Rather, the ADA’s definition of\n\n“disability” in § 12102(1) provides that a disability is a present “physical or mental\n\nimpairment,” “a record of such an impairment,” or “being regarded as having such\n\nan impairment.” See id. § 12102(1)(A)–(C) (emphasis added). It is well settled\n\nthat “impairment” in the first “actual disability” prong, § 12102(1)(A), is limited to\n\nimpairments that exist at the time of the adverse employment action and does not\n\ninclude impairments that manifest after the alleged discrimination. See Mazzeo,\n\n746 F.3d at 1268 (explaining that, for ADA discrimination claims, a plaintiff must\n\nshow that she had a disability “at the time of the adverse employment action.”\n\n(emphasis added)); Chevron Phillips Chem., 570 F.3d at 618 (“In an ADA case,\n\nthe relevant time for assessing the existence of a disability is the time of the\n\nadverse employment action.”); Cash, 231 F.3d at 1306 n.5 (providing that a later\n\nmanifesting impairment was irrelevant to an ADA claim because courts evaluate\n\nan employee’s disability as manifested at the time of the discriminatory\n\nemployment action).\n\n It follows that “impairment” in the “regarded as” statutory prong,\n\n§ 12102(1)(C), has the same meaning as “impairment” in the actual disability\n\nprong, § 12102(1)(A). See Ratzlaf v. United States, 510 U.S. 135, 143, 114 S. Ct.\n\n655-660 (1994) (“A term appearing in several places in a statutory text is generally\n\n\n 13\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 14 of 33\n\n\nread the same way each time it appears.”); Sullivan v. Stroop, 496 U.S. 478, 484,\n\n110 S. Ct. 2499, 2504 (1990) (reciting the well-established proposition that\n\n“identical words used in different parts of the same act are intended to have the\n\nsame meaning” (internal quotation marks omitted)). This is especially true here\n\nwhere § 12102(1)(C) refers to “such an impairment,” which necessarily refers back\n\nto § 12102(1)(A). 42 U.S.C. § 12102(1)(A), (C) (emphasis added). In “regarded\n\nas” cases, a plaintiff must show that the employer knew that the employee had an\n\nactual impairment or perceived the employee to have such an impairment at the\n\ntime of the adverse employment action. 42 U.S.C. § 12102(3)(A). Further, the\n\nimpairment must not be “transitory and minor.” Id. § 12102(3)(B).\n\n Second and similarly, when § 12102(3)(A) is read most naturally, an\n\nindividual meets the requirement of being regarded as disabled only if she was\n\nsubject to termination “because of an actual or perceived physical or mental\n\nimpairment.” See 42 U.S.C. § 12102(3)(A). An employer does not fire or\n\notherwise discriminate against an employee “because of” a perceived physical\n\nimpairment unless the employer actually perceives that the employee has the\n\nimpairment. Section 12102(3)(A) does not, by its terms, extend to an employer’s\n\nbelief that an employee might contract or develop an impairment in the future. See\n\nEEOC v. BNSF Ry. Co., 902 F.3d 916, 923 (9th Cir. 2018) (agreeing that, under\n\n§ 12102(3)(A), for an employer to regard an individual as having a disability, the\n\n\n 14\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 15 of 33\n\n\nemployer “must have regarded him as having a current impairment”); Adair v. City\n\nof Muskogee, 823 F.3d 1297, 1306 (10th Cir. 2016) (providing in a § 12102(3)(A)\n\ncase, “for a plaintiff alleging disability discrimination to show that the employer\n\nregarded h[er] as having an impairment, the plaintiff must show that (1) [s]he has\n\nan actual or perceived impairment, (2) that impairment is neither transitory nor\n\nminor, and (3) the employer was aware of and therefore perceived the impairment\n\nat the time of the alleged discriminatory action.”); Morriss v. BNSF Ry. Co., 817\n\nF.3d 1104, 1113 (8th Cir. 2016) (stating for a § 12102(3)(A) claim, “[t]he ADA\n\ndoes not prohibit discrimination based on a perception that a physical\n\ncharacteristic—as opposed to a physical impairment—may eventually lead to a\n\nphysical impairment as defined under the Act. Instead, the plain language of the\n\nADA prohibits actions based on an existing impairment or the perception of an\n\nexisting impairment.”).\n\n Third, we recognize that the ADA directs that “[t]he definition of\n\ndisability . . . shall be construed in favor of broad coverage of individuals.” See\n\nid. § 12102(4)(A). But that is only “to the maximum extent permitted by the terms\n\nof this chapter.” Id. Even construing the disability definition broadly in favor of\n\ncoverage, we still conclude that the terms of the ADA protect anyone who\n\nexperiences discrimination because of a current, past, or perceived disability—not\n\na potential future disability. Id. §§ 12102(1), 12102(3)(A).\n\n\n 15\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 16 of 33\n\n\n Fourth, our conclusion is consistent with the EEOC’s own interpretive\n\nguidance, which states that a predisposition to developing an illness or disease is\n\nnot a physical impairment. See Harrison, 593 F.3d at 1214 (“[A]lthough\n\nadministrative interpretations of an Act by its enforcing agency are not controlling,\n\nthey do constitute a body of experience and informed judgment to which\n\n[we] . . . may properly resort for guidance.” (internal quotation marks omitted)). In\n\nits regulations, the EEOC counsels that “[i]t is important to distinguish between\n\nconditions that are impairments and physical, psychological, environmental,\n\ncultural, and economic characteristics that are not impairments.” 29 C.F.R. Pt.\n\n1630, App. § 1630.2(h). Those regulations further state that “characteristic\n\npredisposition to illness or disease” does not constitute a physical impairment\n\nunder the ADA. Id. If a predisposition to developing a disease in the future is not\n\na physical impairment, by analogy, we do not see how Lowe’s heightened risk of\n\ndeveloping the disease Ebola in the future due to her visit to Ghana constitutes a\n\nphysical impairment either. As a result, under the facts of this case, Massage Envy\n\ndid not perceive Lowe as having a physical impairment within the meaning of the\n\nADA when it terminated her employment.\n\n The EEOC disagrees, urging instead that the ADA is broad enough to\n\nprohibit an employer from firing an employee because the employer perceives that\n\nthe employee will imminently contract a disease in the near future. The EEOC\n\n\n 16\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 17 of 33\n\n\nreaches this conclusion by focusing on the present tense of the verbs in the\n\n“regarded as” prong of the disability definition in § 12102(1)(C)—“being regarded\n\nas having such an impairment”—and the Dictionary Act, which instructs: “[i]n\n\ndetermining the meaning of any Act of Congress, unless the context indicates\n\notherwise . . . words used in the present tense include the future as well as the\n\npresent.” 1 U.S.C. § 1. With the Dictionary Act in hand, the EEOC asserts that we\n\nshould read the “regarded as” prong in § 12102(1)(C) to include “being regarded as\n\nwill be having such an impairment.” Despite the extraordinarily awkward prose\n\nthat results, it is that interpretation, so says the EEOC, that catches the facts of this\n\ncase.4 We are not persuaded.\n\n While it is true that the phrase “being regarded as having such an\n\nimpairment” contains present tense verbs, the ADA’s plain language and context\n\nindicates that the Dictionary Act does not apply here as the EEOC suggests. See\n\nRowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194,\n\n199, 113 S. Ct. 716, 720 (1993) (“‘Context’ [in the Dictionary Act] means the text\n\n\n\n 4\n At oral argument, the EEOC also suggested that we should read the “regarded as”\ndisabled prong as “being regarded as having an imminent impairment.” Although that phrase\nreads better than the other alternative offered by the EEOC, the Dictionary Act does not\nauthorize us to add the word “imminent” to a statute wherever we see fit. See Carr v. United\nStates, 560 U.S. 438, 448, 130 S. Ct. 2229, 2236 (2010) (explaining that section 1 of the\nDictionary Act “ascribes significance to verb tense” (emphasis added)); Catskill Dev., LLC v.\nPark Place Entm’t Corp., 547 F.3d 115, 126 (2d Cir. 2008) (relying on the Dictionary Act to read\nthe verb “is” as “will be” in a provision of the Indian Gaming Regulatory Act, 25 U.S.C.\n§ 2703(4)).\n 17\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 18 of 33\n\n\nof the Act of Congress surrounding the word at issue, or the texts of other related\n\ncongressional Acts, and this is simply an instance of the word’s ordinary\n\nmeaning.”).\n\n As noted earlier, § 12102(3)(A) provides the express, specialized definition\n\nof “regarded as having such an impairment” for purposes of the ADA. To meet the\n\nrequirements of “being regarded” as disabled under § 12102(3)(A), an individual\n\nmust establish, in relevant part, that “she has been subjected to an action prohibited\n\nunder this chapter because of an actual or perceived physical or mental\n\nimpairment.” 42 U.S.C. § 12102(3)(A). Notably, that statutory phrase in\n\n§ 12102(3)(A) contains no present tense verb for the Dictionary Act to carry into\n\nthe future. Rather, by its terms, for an employee to qualify as “being regarded as”\n\ndisabled, the employer must have perceived the employee as having a current\n\nexisting impairment at the time of the alleged discrimination.\n\n We reject the EEOC’s reading of § 12102(1)(C), as it ignores altogether the\n\nADA’s direction in § 12102(3)(A). See Corley v. United States, 556 U.S. 303,\n\n314, 129 S. Ct. 1558, 1566 (2009) (noting that it is “one of the most basic” canons\n\nof statutory interpretation that “a statute should be construed so that effect is given\n\nto all its provisions” (internal quotation marks and citations omitted)). “‘It is the\n\nduty of the court to give effect, if possible, to every clause and word of a statute.’”\n\n\n\n\n 18\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 19 of 33\n\n\nIn re Failla, 838 F.3d 1170, 1175 (11th Cir. 2016) (quoting Inhabitants of\n\nMontclair Twp. v. Ramsdell, 107 U.S. 147, 152, 2 S. Ct. 391, 395 (1883)).\n\n And to come full circle, in reading the ADA most naturally, we would\n\nexpect “regarded as having such an impairment” in § 12102(1)(C)—the paragraph\n\nrelied upon by the EEOC—to retain the same meaning as that phrase is explicitly\n\ngiven by its definition in § 12102(3)(A). To be sure, “[i]n all but the most unusual\n\nsituations, a single use of a statutory phrase must have a fixed meaning.” Cochise\n\nConsultancy, Inc. v. United States ex rel. Hunt, 587 U.S. __, __, 139 S. Ct. 1507,\n\n1512 (2019). This is especially so because the two paragraphs cross-reference one\n\nanother. Compare 42 U.S.C. § 12102(1)(C) (“being regarded as having such an\n\nimpairment (as described in paragraph (3) (emphasis added)), with id.\n\n§ 12102(3)(A) (“For purposes of paragraph (1)(C): (A) An individual meets the\n\nrequirement of ‘being regarded as having such an impairment’ if the individual\n\nestablishes . . . .” (emphasis added)).\n\n With these principles in mind, we conclude that the EEOC failed to state a\n\n“regarded as” disabled claim because it did not allege that Massage Envy\n\nperceived that Lowe had an existing impairment at the time it terminated her\n\nemployment. The district court did not err in dismissing the EEOC’s “regarded as”\n\nclaim.\n\n\n\n\n 19\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 20 of 33\n\n\n V. ASSOCIATION DISCRIMINATION\n\n Next, we turn to the EEOC’s claim of association discrimination under the\n\nADA. See 42 U.S.C. § 12112(b)(4). In this claim, the EEOC alleged that Massage\n\nEnvy violated the ADA by firing Lowe based on “her association with people in\n\nGhana whom Massage Envy believed to be disabled by Ebola.”\n\n Under § 12112(b)(4), the ADA defines “discriminate” to include “excluding\n\nor otherwise denying equal jobs or benefits to a qualified individual because of the\n\nknown disability of an individual with whom the qualified individual is known to\n\nhave a relationship or association.” 42 U.S.C. § 12112(b)(4).\n\n This association discrimination provision “was intended to protect qualified\n\nindividuals from adverse job actions based on ‘unfounded stereotypes and\n\nassumptions’ arising from the employees’ relationships with particular disabled\n\npersons.” Oliveras–Sifre v. Puerto Rico Dep’t of Health, 214 F.3d 23, 26 (1st Cir.\n\n2000). Indeed, the provision “was apparently inspired in part by testimony before\n\nHouse and Senate Subcommittees pertaining to a woman who was fired from her\n\nlong-held job because her employer found out that the woman’s son, who had\n\nbecome ill with AIDS, had moved into her house so she could care for him.” Den\n\nHartog v. Wasatch Acad., 129 F.3d 1076, 1082 (10th Cir. 1997).\n\n To state a prima facie claim for association discrimination, the plaintiff must\n\nshow: “(1) that she was subjected to an adverse employment action; (2) that she\n\n\n 20\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 21 of 33\n\n\nwas qualified for the job at that time; (3) that her employer knew at that time that\n\nshe had a relative [or associate] with a disability; and (4) that the adverse\n\nemployment action occurred under circumstances which raised a reasonable\n\ninference that the disability of the relative [or associate] was a determining factor\n\nin the employer’s decision.” Wascura v. City of S. Miami, 257 F.3d 1238, 1242\n\n(11th Cir. 2001) (internal quotation marks and alteration omitted). As to the third\n\nprong, while the nature of the relationship in question need not be familial, see 29\n\nC.F.R. § 1630.8, a plaintiff must show an association or relationship with a specific\n\ndisabled person or persons. See 42 U.S.C. § 12112(b)(4).\n\n Like the district court, we conclude that the EEOC failed to state an\n\nassociation discrimination claim under the ADA because it did not plausibly allege\n\nthat Massage Envy knew that Lowe had an association with a specific disabled\n\nindividual in Ghana when it terminated her employment. As a matter of fact, the\n\nonly specific person that Massage Envy knew that Lowe would associate with in\n\nGhana was her sister. But the EEOC never alleged that Lowe’s sister had Ebola or\n\nthat Massage Envy thought that her sister had Ebola. 5\n\n Instead, the EEOC contended, in essence, that Massage Envy believed Lowe\n\nmight come into contact with certain unknown individuals while traveling in\n\nGhana whom Massage Envy thought might have Ebola. This is too attenuated to\n\n\n 5\n Lowe’s intervenor complaint does not allege that either.\n 21\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 22 of 33\n\n\nstate an association discrimination claim under § 12112(b)(4) of the ADA, which\n\nrequires both a known association and a known disability. See 42 U.S.C.\n\n§ 12112(b)(4) (prohibiting employment discrimination “because of the known\n\ndisability of an individual with whom the qualified individual is known to have a\n\nrelationship or association” (emphasis added)).\n\n Moreover, the EEOC failed to plausibly allege a sufficient association or\n\nrelationship with said unknown individuals with Ebola in any event. Lowe\n\ncertainly was not traveling to Ghana to assist with the Ebola epidemic. See, e.g.,\n\n29 C.F.R. Pt. 1630, App. § 1630.8 (suggesting that an employee doing volunteer\n\nwork with people with AIDS might be the type of “association” contemplated by\n\n§ 12112(b)(4) of the ADA). And, of course, there was no Ebola outbreak in Ghana\n\nin the first place. But even if some people in Ghana did have the disease, the\n\nEEOC has merely alleged that Lowe might come into contact with those\n\nindividuals while traveling in the country. That is too loose of an association for\n\npurposes of a claim under § 12112(b)(4).\n\n In so concluding, we are persuaded by the Fourth Circuit’s decision in\n\nFreilich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (4th Cir. 2002). In\n\nFreilich, the defendant hospital terminated the plaintiff physician. Id. at 209. In\n\nher complaint, the physician raised, inter alia, a claim for association\n\ndiscrimination under the ADA, alleging that she was discriminated against because\n\n\n 22\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 23 of 33\n\n\nshe refused to end her advocacy on behalf of her dialysis patients and was denied\n\nvarious privileges because of her “association with and her relationship to patients\n\nwith disabilities.” Id. at 216 (internal quotation marks omitted). The Fourth\n\nCircuit disagreed, concluding that the physician’s complaint did not state an\n\nassociation discrimination claim because she alleged only “a loose association with\n\ndisabled patients.” Id. The Fourth Circuit reasoned that “such generalized\n\nreferences to association with disabled persons or to advocacy for a group of\n\ndisabled persons are not sufficient to state a claim for association[] discrimination\n\nunder the ADA.” Id. As “[e]very hospital employee can allege at least a loose\n\nassociation with disabled patients,” allowing the plaintiff physician “to proceed on\n\nsuch a basis would arm every hospital employee with a potential ADA complaint.”\n\nId. “A step of that magnitude is for Congress, not this court, to take.” Id.\n\n In this case, the EEOC has alleged an association even “looser” than the\n\nphysician and patient relationship in Freilich. Here, the EEOC’s entire claim is\n\nbased on Massage Envy’s concern that Lowe might come across some unknown\n\nperson with Ebola while traveling in Ghana. But the EEOC has not cited to, nor\n\nare we aware of, a single case involving an association discrimination claim\n\npremised on an employer’s belief about an employee’s potential casual association\n\nwith unknown disabled people.\n\n\n\n\n 23\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 24 of 33\n\n\n At the end of the day, we need not, and do not, weigh in on whether it was\n\nunfair or misguided for Massage Envy to fire Lowe after she refused to cancel her\n\ntrip to Ghana. As we have repeatedly and emphatically held, “[a]n employer may\n\nfire an employee for a good reason, a bad reason, a reason based on erroneous\n\nfacts, or for no reason at all, as long as its action is not for a discriminatory reason”\n\ncontrary to federal law. Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253, 1262\n\n(11th Cir. 2001) (internal quotation marks omitted). Our sole concern is whether\n\nMassage Envy violated the ADA. On that score, the answer is no. The district\n\ncourt correctly dismissed this claim.\n\n VI. UNLAWFUL INTERFERENCE\n\n On appeal, the EEOC does not raise any arguments as to its claim that\n\nMassage Envy interfered with Lowe’s exercise and enjoyment of her rights under\n\nthe ADA. However, Lowe does, arguing that the district court wrongly concluded\n\nthat it would be futile to allow the EEOC to amend its complaint to add this\n\ninterference claim. 6 We disagree.\n\n Under the Federal Rules of Civil Procedure, a district court “should freely\n\ngive leave [to amend a complaint] when justice so requires.” Fed. R. Civ. P.\n\n\n\n\n 6\n We review for abuse of discretion a district court’s refusal to grant leave to file an\namended complaint, although we review de novo the “legal conclusion of whether a particular\namendment to the complaint would be futile.” Harris v. Ivax Corp., 182 F.3d 799, 802 (11th Cir.\n1999).\n 24\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 25 of 33\n\n\n15(a)(2). But a district court may deny a motion for leave to amend as futile\n\n“when the complaint as amended would still be properly dismissed.” Cockrell v.\n\nSparks, 510 F.3d 1307, 1310 (11th Cir. 2007).\n\n The district court properly denied the EEOC’s motion to file a second\n\namended complaint because its interference claim would have been subject to\n\ndismissal as a matter of law for failure to state a claim. 7 Under the ADA’s anti-\n\ninterference provision, it is “unlawful to coerce, intimidate, threaten, or interfere\n\nwith any individual in the exercise or enjoyment of, or on account of his or her\n\nhaving exercised or enjoyed, or on account of his or her having aided or\n\nencouraged any other individual in the exercise or enjoyment of, any right granted\n\nor protected by [the ADA].” 42 U.S.C. § 12203(b). And the EEOC’s interference\n\nclaim tracked that language, alleging that, when owner Wuchko told Lowe that she\n\nwould be fired if she did not cancel her Ghana trip, Massage Envy coerced,\n\nintimidated, and threatened Lowe and interfered with her exercise and enjoyment\n\nof rights under the ADA, in violation of 42 U.S.C. § 12203(b).\n\n The problem with the EEOC’s interference claim, however, is that, when\n\nMassage Envy fired Lowe, she had no existing rights under the ADA. Of course,\n\n\n 7\n The district court concluded, alternatively, that the interference claim was also due to be\ndismissed for failure to exhaust administrative remedies. On appeal, the EEOC submits that it is\nnot required to exhaust administrative remedies before filing suit, citing EEOC v. Caterpillar,\nInc., 409 F.3d 831 (7th Cir. 2005). Because we agree with the district court that the interference\nclaim fails to state a claim upon which relief can be granted, we need not address the court’s\nalternative basis for dismissing it based on failure to exhaust administrative remedies.\n 25\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 26 of 33\n\n\nLowe was not actually disabled by Ebola and thus had no right to a reasonable\n\naccommodation under the ADA. She had not associated with, or even planned to\n\nassociate with, any known person disabled by Ebola either. Because Lowe had no\n\nrights under the ADA, Massage Envy could not and did not interfere with her\n\nexercise or enjoyment of those rights. Consequently, the EEOC could not have\n\nstated a plausible interference claim, and any amendment seeking to add such a\n\nclaim to the complaint would have been futile.\n\n VII. LOWE’S INTERVENOR COMPLAINT\n\n On appeal, Lowe also argues that the district court erred in not allowing her\n\nto intervene in this lawsuit.8 Lowe contends that, although she timely moved to\n\nintervene, the district court did not rule on the merits of her motion. Rather, after\n\ndetermining that the EEOC’s claims were due to be dismissed with prejudice, it\n\ndirected the clerk to terminate all pending motions as moot and close the case.\n\nLowe’s motion to intervene was among those terminated motions. We agree with\n\nLowe that the district court should have addressed the merits of her motion to\n\nintervene, rather than terminating it as moot.\n\n Although district courts enjoy broad discretion in deciding how best to\n\nmanage the cases before them, that discretion is not unfettered. Chudasama v.\n\n 8\n We review the denial of a motion to intervene as of right de novo. Purcell v.\nBankAtlantic Fin. Corp., 85 F.3d 1508, 1512 (11th Cir. 1996).\n\n\n\n 26\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 27 of 33\n\n\nMazda Motor Corp., 123 F.3d 1353, 1366–67 (11th Cir. 1997). “When a litigant’s\n\nrights are materially prejudiced by the district court’s mismanagement of a case,\n\nwe must redress the [error].” Id. at 1367. As we have explained, “[f]ailure to\n\nconsider and rule on significant pretrial motions before issuing dispositive orders\n\ncan be an abuse of discretion” or constitute legal error. Id.\n\n Federal Rule of Civil Procedure 24(a)(1) states that “[o]n timely motion, the\n\ncourt must permit anyone to intervene who . . . is given an unconditional right to\n\nintervene by a federal statute.” Fed. R. Civ. P. 24(a). Under Title VII, 42 U.S.C.\n\n§ 2000e-5(f), as the aggrieved employee, Lowe had a right to intervene in this\n\naction brought by the EEOC. See 42 U.S.C. § 2000e-5(f)(1). The language of\n\n§ 2000e-5(f)(1) unambiguously gives employees an unconditional right to\n\nintervene in EEOC enforcement actions. Id. (“The person or persons aggrieved\n\nshall have the right to intervene in a civil action brought by the\n\nCommission . . . .”). In fact, once the EEOC files suit on its own, “the employee\n\nhas no independent cause of action.” EEOC v. Waffle House, Inc., 534 U.S. 279,\n\n291, 122 S. Ct. 754, 763 (2002). The employee’s only option is to intervene in the\n\nEEOC’s suit. Id.\n\n Here, Lowe timely filed her motion to intervene and she had an\n\nunconditional statutory right to intervene in this lawsuit. The district court thus\n\nhad no discretion to deny her intervention under Rule 24(a). By failing to consider\n\n\n 27\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 28 of 33\n\n\nand rule on the merits of Lowe’s motion before dismissing the EEOC’s complaint,\n\nthe district court effectively circumvented the mandates of both Rule 24(a) and\n\n§ 2000e-5(f). That was error. The district court should have considered the merits\n\nof Lowe’s motion to intervene.\n\n Nevertheless, because we have affirmed the district court’s dismissal of each\n\nof the EEOC’s claims, any error by the district court in declining to rule on Lowe’s\n\nmotion to intervene was harmless. The standard for harmless error is whether the\n\ncomplaining party’s substantial rights were infringed upon. United States v. Mar.\n\nLife Caribbean Ltd., 913 F.3d 1027, 1033 (11th Cir. 2019); Haney v. Mizell Mem’l\n\nHosp., 744 F.2d 1467, 1475 (11th Cir. 1984). The error by the district court\n\nprejudiced Lowe only if there is a “reasonable likelihood that the outcome would\n\nhave been different” if the district court had permitted Lowe to intervene in the\n\nlawsuit before proceeding to decide the merits of the EEOC’s claims. See Mar.\n\nLife Caribbean Ltd., 913 F.3d at 1033 (internal quotation marks omitted).\n\n Lowe was not prejudiced because there is no reasonable likelihood that the\n\noutcome of this proceeding would have been different had she intervened. In her\n\nintervenor complaint, Lowe advanced the exact same factual allegations, claims,\n\nand arguments that the EEOC had already made itself in the lawsuit. Just like the\n\nEEOC, Lowe claimed that Massage Envy perceived her as having a disability\n\n(Ebola) and fired her due to that perceived disability (Ebola), in violation of the\n\n\n 28\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 29 of 33\n\n\nADA. Although Lowe brought that “regarded as” disabled claim under both the\n\nADA and the FCRA, “disability-discrimination claims under the FCRA are\n\nanalyzed using the same framework as ADA claims.” Holly v. Clairson Indus.,\n\nLLC, 492 F.3d 1247, 1255 (11th Cir. 2007). Therefore, if the district court had\n\nallowed Lowe to intervene, the court would have ultimately dismissed Lowe’s\n\n“regarded as” disabled claim for the same reasons that it dismissed the EEOC’s\n\n“regarded as” disabled claim. The outcome of the proceeding would not have\n\ndiffered.\n\n In turn, we have affirmed on appeal the district court’s dismissal of the\n\nEEOC’s “regarded as” disabled claim, as well as its association discrimination and\n\ninterference claims. And in so ruling, we have considered every issue that Lowe\n\nraised in her briefing, including her vigorous arguments that the district court erred\n\nin dismissing all three of the EEOC’s ADA claims. For all of these reasons, Lowe\n\nsuffered no prejudice by the district court not allowing her to intervene in this\n\nproceeding. In light of these factual circumstances, we affirm the district court’s\n\ndismissal of Lowe’s motion to intervene because any error the court committed by\n\nfailing to address the merits of her motion was harmless.\n\n VIII. CONCLUSION\n\n\n\n\n 29\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 30 of 33\n\n\n For the foregoing reasons, we must affirm the district court’s final judgment\n\nin favor of Massage Envy.\n\n AFFIRMED.\n\n\n\n\n 30\n\n Case: 18-11121 Date Filed: 09/12/2019 Page: 31 of 33\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Kimberly Lowe v. STME, LLC\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-09-12\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-11121 Date Filed: 09/12/2019 Page: 1 of 33\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n Nos. 18-11121, No. 18-12277\\n ________________________\\n\\n D.C. Docket No. 8:17-cv-00977-MSS-CPT\\n\\n\\n\\nEQUAL EMPLOYMENT OPPORTUNITY COMMISSION,\\n\\n Plaintiff-Appellant,\\n\\nKIMBERLY LOWE,\\n\\n Intervenor-Appellant,\\n\\n versus\\n\\nSTME, LLC,\\nd.b.a. Massage Envy-South Tampa,\\n\\n Defendant-Appellee.\\n\\n ________________________\\n\\n Appeals from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (September 12, 2019)\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 2 of 33\\n\\n\\nBefore JORDAN, GRANT and HULL, Circuit Judges.\\n\\nHULL, Circuit Judge:\\n\\n In this consolidated appeal, the plaintiff Equal Employment Opportunity\\n\\nCommission (“EEOC”) and intervenor Kimberly Lowe appeal the entry of\\n\\njudgment for defendant STME, LLC, d.b.a. Massage Envy-South Tampa\\n\\n(“Massage Envy”), on their employment discrimination claims brought under the\\n\\nAmericans with Disabilities Act of 1990 (“ADA”), as amended by the ADA\\n\\nAmendments Act of 2009. Although the EEOC brought only disability\\n\\ndiscrimination claims, it is undisputed that Lowe was not actually disabled when\\n\\nMassage Envy terminated her employment. The EEOC, however, alleged that\\n\\nMassage Envy violated the ADA because it fired Lowe when she refused to cancel\\n\\nher trip to Ghana, a country in West Africa. Massage Envy’s stated reason for the\\n\\ntermination was its fear that Lowe might contract and later develop Ebola due to\\n\\nher Ghana travel. This case involves issues of first impression as to the meaning of\\n\\n“regarded as having such an impairment,” which is a statutory phrase contained in\\n\\n42 U.S.C. § 12102(1)(C).\\n\\n After review and oral argument, we conclude that, even construing the\\n\\nstatute broadly, the terms of the ADA protect persons who experience\\n\\ndiscrimination because of a current, past, or perceived disability—not because of a\\n\\n\\n\\n\\n 2\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 3 of 33\\n\\n\\npotential future disability that a healthy person may experience later. Accordingly,\\n\\nwe affirm the district court’s final judgment in favor of defendant Massage Envy.\\n\\n I. FACTUAL BACKGROUND\\n\\n Because this appeal arises at the motion-to-dismiss stage, we accept as true\\n\\nthe facts as alleged in the EEOC’s complaint. See Bailey v. Wheeler, 843 F.3d\\n\\n473, 480 (11th Cir. 2016).\\n\\nA. Lowe’s Employment at Massage Envy\\n\\n Massage Envy is a wellness franchise that offers massage and skin care\\n\\nservices. In January 2012, Kimberly Lowe began working as a massage therapist\\n\\nat a Massage Envy located in Tampa, Florida. At all times relevant to this case,\\n\\nLowe did not have a disability. Rather, she was both capable of performing her job\\n\\nduties and did perform her job duties in a satisfactory manner.\\n\\n In September 2014, Lowe asked Massage Envy for time off so that she could\\n\\nvisit her sister in Ghana, a country located in West Africa. Massage Envy’s\\n\\nbusiness manager, Roxanna Iorio, initially approved Lowe’s request. However, on\\n\\nOctober 22, 2014, three days before her scheduled trip, one of Massage Envy’s\\n\\nowners, Ronald Wuchko, met with Lowe and told her that she would be fired if she\\n\\nwent ahead with her travel plans.\\n\\n Owner Wuchko was concerned that Lowe would become infected with the\\n\\nEbola virus if she traveled to Ghana and would “bring it home to Tampa and infect\\n\\n\\n 3\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 4 of 33\\n\\n\\neveryone.” At that time in 2014, there was an Ebola epidemic in Guinea, Liberia,\\n\\nand Sierra Leone, three other nearby countries in West Africa. According to\\n\\nWuchko, he was worried about the “potentially catastrophic consequences that an\\n\\noutbreak of Ebola could pose to America.” Because Lowe refused to cancel her\\n\\ntrip, Wuchko terminated her employment during that October 22 meeting and\\n\\nbefore she left.\\n\\n Lowe then traveled to Ghana as planned. She did not contract Ebola while\\n\\nthere. In fact, as it turned out, there was no Ebola outbreak at all in Ghana in\\n\\n2014. 1 Upon her return from West Africa, Lowe did not work at Massage Envy\\n\\nand was not otherwise permitted to keep her massage appointment bookings at\\n\\nMassage Envy.\\n\\nB. Lowe’s Charge and the EEOC’s Investigation\\n\\n In November 2014, Lowe filed a Charge of Discrimination with the EEOC,\\n\\nasserting that Massage Envy terminated her employment because owner Wuchko\\n\\nbelieved that she would come into contact with a person having Ebola while in\\n\\nGhana. Based on that allegation, Lowe claimed that she was discriminated against\\n\\n\\n\\n 1\\n While the West Africa Ebola epidemic spread to other parts of Africa, Europe, and the\\nUnited States, the epicenter of the outbreak was in the countries of Guinea, Sierra Leone, and\\nLiberia in West Africa. 2014-2016 Ebola Outbreak Distribution in West Africa, Centers for\\nDisease Control and Prevention, https://www.cdc.gov/vhf/ebola/history/2014-2016-\\noutbreak/index.html (last visited on Sept. 12, 2019). Owner Wuchko’s fear was unfounded.\\nAlthough Ghana is nearby and also in West Africa, there were no confirmed cases of Ebola in\\nGhana during the 2014 outbreak.\\n 4\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 5 of 33\\n\\n\\nbecause Massage Envy “perceived [her] as disabled or . . . as having [the] potential\\n\\nto become disabled,” in violation of the ADA.\\n\\n The EEOC investigated Lowe’s charge. Almost two years later, on\\n\\nSeptember 6, 2016, the EEOC issued a Letter of Determination finding that there\\n\\nwas “reasonable cause” to believe that Massage Envy terminated Lowe’s\\n\\nemployment because it “regarded” her as disabled, in violation of the ADA. The\\n\\nEEOC invited Massage Envy to engage in conciliation efforts, but those efforts\\n\\nfailed.\\n\\n II. PROCEDURAL HISTORY\\n\\n On April 26, 2017, the EEOC filed this lawsuit, alleging in the operative\\n\\namended complaint that “Ebola is a physical impairment that substantially limits\\n\\nthose infected in one or more major life activity, including, but not limited to,\\n\\ncirculatory function and immune system function.” As such, the EEOC alleged\\n\\nthat: (1) Massage Envy violated the ADA, 42 U.S.C. § 12112(a), by “terminating\\n\\nand not permitting Lowe to return to work upon her return from Ghana because it\\n\\nregarded her as disabled”; and (2) Massage Envy violated the ADA, 42 U.S.C.\\n\\n§ 12112(a) & (b)(4), “by terminating and not permitting Lowe to return to work\\n\\nupon her return from Ghana based upon Massage Envy’s fears and beliefs about\\n\\nEbola and based upon her association with people in Ghana whom Massage Envy\\n\\nbelieved to be disabled by Ebola.”\\n\\n\\n 5\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 6 of 33\\n\\n\\n Later, in the district court proceedings, the EEOC informed the district court\\n\\nthat it was “not alleg[ing] that Massage Envy ‘failed to reinstate or rehire’ Lowe”\\n\\nin its amended complaint. Relying on that representation, the district court\\n\\nconsidered the EEOC’s claims only to the extent they applied to Lowe’s October\\n\\n22 termination, not to any later refusal to rehire her. We do the same on appeal.2\\n\\n On June 20, 2017, Lowe moved to intervene in the lawsuit. In her\\n\\nintervenor complaint, Lowe recounted the same facts surrounding her termination\\n\\nas the EEOC set forth in its amended complaint. Based on those allegations, Lowe\\n\\nclaimed that Massage Envy’s firing of her violated the ADA and the Florida Civil\\n\\nRights Act of 1992 (“FCRA”) because the termination decision was based on\\n\\nunfounded fears and beliefs about Ebola and Lowe’s risk for the disease. Lowe’s\\n\\nclaims were based on the same theory that the EEOC advanced—that Massage\\n\\nEnvy perceived her as having a disability and fired her due to that perceived\\n\\ndisability.\\n\\n Thereafter, in July 2017, Massage Envy moved to dismiss the EEOC’s\\n\\namended complaint for failure to state a claim and failure to exhaust administrative\\n\\nremedies. See Fed. R. Civ. P. 12(b)(6). While that Rule 12(b)(6) motion was\\n\\n\\n 2\\n On appeal, the EEOC argues that the district court erred in cabining its claims to Lowe’s\\ntermination. We will not consider this argument because whatever error, if any, the district court\\ncommitted by not considering the EEOC’s claims as to Massage Envy’s failure to reinstate or\\nrehire Lowe was invited by the EEOC. See United States v. Stone, 139 F.3d 822, 838 (11th Cir.\\n1998) (The doctrine of invited error precludes appellate review “when a party induces or invites\\nthe district court into making an error.”).\\n 6\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 7 of 33\\n\\n\\npending, in October 2017, the EEOC moved to file a second amended complaint,\\n\\nin which it sought to raise an ADA unlawful interference claim. In that new claim,\\n\\nthe EEOC alleged that when owner Wuchko told Lowe that she would be fired if\\n\\nshe did not cancel her Ghana trip, Massage Envy coerced, intimidated, and\\n\\nthreatened Lowe and interfered with her exercise and enjoyment of rights under the\\n\\nADA, in violation of 42 U.S.C. § 12203(b). The EEOC suggested that Lowe’s\\n\\ninterfered-with ADA rights were: (1) the right to a reasonable accommodation if\\n\\nLowe actually developed Ebola; and (2) the right to associate with disabled\\n\\npersons, i.e., people in Ghana with Ebola.\\n\\n In a February 15, 2018 order, the district court: (1) granted Massage Envy’s\\n\\nmotion to dismiss the EEOC’s amended complaint; (2) denied the EEOC’s motion\\n\\nto file a second amended complaint as futile; and (3) directed the clerk to terminate\\n\\nall pending motions as moot, which included Lowe’s still-pending motion to\\n\\nintervene. As to the merits of the ADA claims, the district court dismissed the\\n\\nEEOC’s “regarded as” disabled claim because Massage Envy did not perceive\\n\\nLowe as having Ebola at the time it fired her. In so ruling, the district court\\n\\ndeclined to expand the ADA’s “regarded as having” prong of the disability\\n\\ndefinition to cases like this one, in which an employer fires an employee at a time\\n\\nwhen it “perceives [the] employee to be presently healthy with only the potential to\\n\\nbecome disabled in the future due to voluntary conduct.” The district court also\\n\\n\\n 7\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 8 of 33\\n\\n\\nconcluded that the EEOC’s association claim lacked merit because the EEOC did\\n\\nnot allege that Massage Envy knew that Lowe had an existing or past association\\n\\nwith any person disabled by Ebola at the time it fired her.\\n\\n As to the EEOC’s proposed second amended complaint, the district court\\n\\ndenied the EEOC’s request to bring an unlawful interference claim because, inter\\n\\nalia, any such amendment would be futile, as Lowe had no existing rights under\\n\\nthe ADA when she was fired because she was not disabled and had not associated\\n\\nwith anyone who was disabled. Thereafter, the district court entered final\\n\\njudgment in favor of Massage Envy. This appeal followed.\\n\\n III. STANDARD OF REVIEW\\n\\n We review de novo a district court’s order granting a motion to dismiss for\\n\\nfailure to state a claim. Boyle v. City of Pell City, 866 F.3d 1280, 1286 (11th Cir.\\n\\n2017). “To survive a Rule 12(b)(6) motion to dismiss, a complaint must plead\\n\\n‘enough facts to state a claim to relief that is plausible on its face.’” Ray v. Spirit\\n\\nAirlines, Inc., 836 F.3d 1340, 1347–48 (11th Cir. 2016) (quoting Bell Atl. Corp. v.\\n\\nTwombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007)). “A claim is facially\\n\\nplausible when the plaintiff pleads sufficient facts to allow the court to draw the\\n\\nreasonable inference that the defendant is liable for the alleged misconduct.”\\n\\nBoyle, 866 F.3d at 1286.\\n\\n\\n\\n\\n 8\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 9 of 33\\n\\n\\n We also review de novo questions of law, such as the construction of a\\n\\nstatute. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). We “may affirm\\n\\nthe district court’s judgment on any ground that appears in the record, whether or\\n\\nnot that ground was relied upon or even considered by the [district court].”\\n\\nThomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).\\n\\n IV. “REGARDED AS HAVING” A DISABILITY\\n\\n In interpreting the ADA, we are guided by the traditional canons of statutory\\n\\nconstruction. “Our ‘starting point’ is the language of the statute itself.” Harrison\\n\\nv. Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1212–14 (11th Cir. 2010).\\n\\nWe “assume that Congress used the words of the statute as they are commonly and\\n\\nordinarily understood and must construe the statute so each of its provisions is\\n\\ngiven full effect.” United States v. McLymont, 45 F.3d 400, 401 (11th Cir. 1995).\\n\\nTo that end, “[w]e do not look at one word or term in isolation, but instead we look\\n\\nto the entire statutory context.” Harrison, 593 F.3d at 1212 (quotations omitted).\\n\\nWe now set forth the statutory text at issue here.\\n\\nA. Statutory Text\\n\\n Under § 12112(a) of the ADA, an employer is generally prohibited from\\n\\n“discriminat[ing] against a qualified individual on the basis of disability in regard\\n\\nto job application procedures, the hiring, advancement, or discharge of employees,\\n\\nemployee compensation, job training, and other terms, conditions, and privileges\\n\\n\\n 9\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 10 of 33\\n\\n\\nof employment.” 42 U.S.C. § 12112(a). To state a disability discrimination claim,\\n\\na claimant must allege that she was a “qualified individual” who suffered an\\n\\nadverse employment action because of her “disability” as those terms are defined\\n\\nby the ADA. Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264, 1267–68\\n\\n(11th Cir. 2014).\\n\\n In § 12102(1), the ADA defines the statutory term “disability,” with respect\\n\\nto an individual, to mean:\\n\\n (A) a physical or mental impairment that substantially limits one or\\n more major life activities of such individual;\\n\\n (B) a record of such an impairment; or\\n\\n (C) being regarded as having such an impairment (as described in\\n paragraph (3)).\\n\\n42 U.S.C. § 12102(1) (emphasis added). “Accordingly, to fall within this\\n\\ndefinition one must have an actual disability (subsection (A)), have a record of a\\n\\ndisability (subsection (B)), or be regarded as having one (subsection (C)).” Sutton\\n\\nv. United Air Lines, Inc., 527 U.S. 471, 478, 119 S. Ct. 2139, 2144 (1999),\\n\\nabrogated on other grounds by the ADA Amendments Act of 2008, Pub. L. No.\\n\\n110-325, 122 Stat. 3553 (2008).\\n\\n In turn, paragraph 3 in § 12102(3)(A), describes “regarded as having such an\\n\\nimpairment,” for purposes of § 12102(1)(C), as follows:\\n\\n For purposes of paragraph (1)(C): . . . An individual meets the\\n requirement of “being regarded as having such an impairment” if the\\n\\n 10\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 11 of 33\\n\\n\\n individual establishes that he or she has been subjected to an action\\n prohibited under [the ADA] because of an actual or perceived physical\\n or mental impairment whether or not the impairment limits or is\\n perceived to limit a major life activity.\\n\\n42 U.S.C. § 12102(3)(A) (emphasis added). This provision does not apply to\\n\\n“impairments that are transitory and minor.” Id. § 12102(3)(B). Taking these\\n\\ndefinitions together, an employee has a “disability” under the ADA when that\\n\\nemployee actually has, or is perceived as having, an impairment that is not\\n\\ntransitory and minor.\\n\\n The relevant time period for assessing the existence of a disability, so as to\\n\\ntrigger the ADA’s protections, is the time of the alleged discriminatory act. See\\n\\nGarrett v. Univ. of Ala. at Birmingham Bd. of Trs., 507 F.3d 1306, 1312 (11th Cir.\\n\\n2007) (assessing parallel provision of the Rehabilitation Act); 3 Cash v. Smith, 231\\n\\nF.3d 1301, 1306 n.5 (11th Cir. 2000) (“The employment action that Cash is\\n\\ncomplaining of occurred in late April and early May of 1998, and we evaluate her\\n\\ndisability as manifested at that time.”); EEOC v. Chevron Phillips Chem. Co., 570\\n\\nF.3d 606, 618 (5th Cir. 2009) (“In an ADA case, the relevant time for assessing the\\n\\nexistence of a disability is the time of the adverse employment action.”).\\n\\n\\n\\n\\n 3\\n The Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. applies the same standards and\\nfollows the same analysis as claims under the ADA. Sutton v. Lader, 185 F.3d 1203, 1207 n.5\\n(11th Cir. 1999).\\n\\n\\n\\n 11\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 12 of 33\\n\\n\\nB. Analysis of “Regarded As Having” a Disability\\n\\n There is no dispute that Lowe was a qualified individual and she suffered an\\n\\nadverse employment action. Rather, the main question is whether Lowe was\\n\\n“disabled” within the meaning of the ADA at the time of Massage Envy’s\\n\\ntermination of her employment, that is, before her trip to Ghana. Lowe\\n\\nundisputedly did not have an actual existing disability or a record of disability\\n\\nwhen she was fired. Thus, the issue here becomes solely whether she was\\n\\n“regarded as having” a disability when fired.\\n\\n The EEOC contends that Lowe meets the “regarded as” prong of the\\n\\ndisability definition because Massage Envy regarded her (or perceived her) as\\n\\nhaving a disability due to its belief that she would contract Ebola in the future\\n\\nwhile traveling in Ghana. In reply, Massage Envy stresses that owner Wuchko did\\n\\nnot perceive Lowe as having Ebola; rather he perceived her as having the potential\\n\\nor possibility of becoming infected in the future if she traveled to Ghana (i.e.,\\n\\nbecoming disabled in the future).\\n\\n For several reasons, we must conclude that the disability definition in the\\n\\nADA does not cover this case where an employer perceives a person to be\\n\\npresently healthy with only a potential to become ill and disabled in the future due\\n\\nto the voluntary conduct of overseas travel. The EEOC’s claim does not fall within\\n\\nthe scope of the “regarded as having” prong of the ADA’s disability definition.\\n\\n\\n 12\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 13 of 33\\n\\n\\n First, we do not read the “regarded as having” prong in § 12102(1)(C), as\\n\\ndescribed in § 12102(3)(A), in isolation. Rather, the ADA’s definition of\\n\\n“disability” in § 12102(1) provides that a disability is a present “physical or mental\\n\\nimpairment,” “a record of such an impairment,” or “being regarded as having such\\n\\nan impairment.” See id. § 12102(1)(A)–(C) (emphasis added). It is well settled\\n\\nthat “impairment” in the first “actual disability” prong, § 12102(1)(A), is limited to\\n\\nimpairments that exist at the time of the adverse employment action and does not\\n\\ninclude impairments that manifest after the alleged discrimination. See Mazzeo,\\n\\n746 F.3d at 1268 (explaining that, for ADA discrimination claims, a plaintiff must\\n\\nshow that she had a disability “at the time of the adverse employment action.”\\n\\n(emphasis added)); Chevron Phillips Chem., 570 F.3d at 618 (“In an ADA case,\\n\\nthe relevant time for assessing the existence of a disability is the time of the\\n\\nadverse employment action.”); Cash, 231 F.3d at 1306 n.5 (providing that a later\\n\\nmanifesting impairment was irrelevant to an ADA claim because courts evaluate\\n\\nan employee’s disability as manifested at the time of the discriminatory\\n\\nemployment action).\\n\\n It follows that “impairment” in the “regarded as” statutory prong,\\n\\n§ 12102(1)(C), has the same meaning as “impairment” in the actual disability\\n\\nprong, § 12102(1)(A). See Ratzlaf v. United States, 510 U.S. 135, 143, 114 S. Ct.\\n\\n655-660 (1994) (“A term appearing in several places in a statutory text is generally\\n\\n\\n 13\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 14 of 33\\n\\n\\nread the same way each time it appears.”); Sullivan v. Stroop, 496 U.S. 478, 484,\\n\\n110 S. Ct. 2499, 2504 (1990) (reciting the well-established proposition that\\n\\n“identical words used in different parts of the same act are intended to have the\\n\\nsame meaning” (internal quotation marks omitted)). This is especially true here\\n\\nwhere § 12102(1)(C) refers to “such an impairment,” which necessarily refers back\\n\\nto § 12102(1)(A). 42 U.S.C. § 12102(1)(A), (C) (emphasis added). In “regarded\\n\\nas” cases, a plaintiff must show that the employer knew that the employee had an\\n\\nactual impairment or perceived the employee to have such an impairment at the\\n\\ntime of the adverse employment action. 42 U.S.C. § 12102(3)(A). Further, the\\n\\nimpairment must not be “transitory and minor.” Id. § 12102(3)(B).\\n\\n Second and similarly, when § 12102(3)(A) is read most naturally, an\\n\\nindividual meets the requirement of being regarded as disabled only if she was\\n\\nsubject to termination “because of an actual or perceived physical or mental\\n\\nimpairment.” See 42 U.S.C. § 12102(3)(A). An employer does not fire or\\n\\notherwise discriminate against an employee “because of” a perceived physical\\n\\nimpairment unless the employer actually perceives that the employee has the\\n\\nimpairment. Section 12102(3)(A) does not, by its terms, extend to an employer’s\\n\\nbelief that an employee might contract or develop an impairment in the future. See\\n\\nEEOC v. BNSF Ry. Co., 902 F.3d 916, 923 (9th Cir. 2018) (agreeing that, under\\n\\n§ 12102(3)(A), for an employer to regard an individual as having a disability, the\\n\\n\\n 14\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 15 of 33\\n\\n\\nemployer “must have regarded him as having a current impairment”); Adair v. City\\n\\nof Muskogee, 823 F.3d 1297, 1306 (10th Cir. 2016) (providing in a § 12102(3)(A)\\n\\ncase, “for a plaintiff alleging disability discrimination to show that the employer\\n\\nregarded h[er] as having an impairment, the plaintiff must show that (1) [s]he has\\n\\nan actual or perceived impairment, (2) that impairment is neither transitory nor\\n\\nminor, and (3) the employer was aware of and therefore perceived the impairment\\n\\nat the time of the alleged discriminatory action.”); Morriss v. BNSF Ry. Co., 817\\n\\nF.3d 1104, 1113 (8th Cir. 2016) (stating for a § 12102(3)(A) claim, “[t]he ADA\\n\\ndoes not prohibit discrimination based on a perception that a physical\\n\\ncharacteristic—as opposed to a physical impairment—may eventually lead to a\\n\\nphysical impairment as defined under the Act. Instead, the plain language of the\\n\\nADA prohibits actions based on an existing impairment or the perception of an\\n\\nexisting impairment.”).\\n\\n Third, we recognize that the ADA directs that “[t]he definition of\\n\\ndisability . . . shall be construed in favor of broad coverage of individuals.” See\\n\\nid. § 12102(4)(A). But that is only “to the maximum extent permitted by the terms\\n\\nof this chapter.” Id. Even construing the disability definition broadly in favor of\\n\\ncoverage, we still conclude that the terms of the ADA protect anyone who\\n\\nexperiences discrimination because of a current, past, or perceived disability—not\\n\\na potential future disability. Id. §§ 12102(1), 12102(3)(A).\\n\\n\\n 15\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 16 of 33\\n\\n\\n Fourth, our conclusion is consistent with the EEOC’s own interpretive\\n\\nguidance, which states that a predisposition to developing an illness or disease is\\n\\nnot a physical impairment. See Harrison, 593 F.3d at 1214 (“[A]lthough\\n\\nadministrative interpretations of an Act by its enforcing agency are not controlling,\\n\\nthey do constitute a body of experience and informed judgment to which\\n\\n[we] . . . may properly resort for guidance.” (internal quotation marks omitted)). In\\n\\nits regulations, the EEOC counsels that “[i]t is important to distinguish between\\n\\nconditions that are impairments and physical, psychological, environmental,\\n\\ncultural, and economic characteristics that are not impairments.” 29 C.F.R. Pt.\\n\\n1630, App. § 1630.2(h). Those regulations further state that “characteristic\\n\\npredisposition to illness or disease” does not constitute a physical impairment\\n\\nunder the ADA. Id. If a predisposition to developing a disease in the future is not\\n\\na physical impairment, by analogy, we do not see how Lowe’s heightened risk of\\n\\ndeveloping the disease Ebola in the future due to her visit to Ghana constitutes a\\n\\nphysical impairment either. As a result, under the facts of this case, Massage Envy\\n\\ndid not perceive Lowe as having a physical impairment within the meaning of the\\n\\nADA when it terminated her employment.\\n\\n The EEOC disagrees, urging instead that the ADA is broad enough to\\n\\nprohibit an employer from firing an employee because the employer perceives that\\n\\nthe employee will imminently contract a disease in the near future. The EEOC\\n\\n\\n 16\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 17 of 33\\n\\n\\nreaches this conclusion by focusing on the present tense of the verbs in the\\n\\n“regarded as” prong of the disability definition in § 12102(1)(C)—“being regarded\\n\\nas having such an impairment”—and the Dictionary Act, which instructs: “[i]n\\n\\ndetermining the meaning of any Act of Congress, unless the context indicates\\n\\notherwise . . . words used in the present tense include the future as well as the\\n\\npresent.” 1 U.S.C. § 1. With the Dictionary Act in hand, the EEOC asserts that we\\n\\nshould read the “regarded as” prong in § 12102(1)(C) to include “being regarded as\\n\\nwill be having such an impairment.” Despite the extraordinarily awkward prose\\n\\nthat results, it is that interpretation, so says the EEOC, that catches the facts of this\\n\\ncase.4 We are not persuaded.\\n\\n While it is true that the phrase “being regarded as having such an\\n\\nimpairment” contains present tense verbs, the ADA’s plain language and context\\n\\nindicates that the Dictionary Act does not apply here as the EEOC suggests. See\\n\\nRowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194,\\n\\n199, 113 S. Ct. 716, 720 (1993) (“‘Context’ [in the Dictionary Act] means the text\\n\\n\\n\\n 4\\n At oral argument, the EEOC also suggested that we should read the “regarded as”\\ndisabled prong as “being regarded as having an imminent impairment.” Although that phrase\\nreads better than the other alternative offered by the EEOC, the Dictionary Act does not\\nauthorize us to add the word “imminent” to a statute wherever we see fit. See Carr v. United\\nStates, 560 U.S. 438, 448, 130 S. Ct. 2229, 2236 (2010) (explaining that section 1 of the\\nDictionary Act “ascribes significance to verb tense” (emphasis added)); Catskill Dev., LLC v.\\nPark Place Entm’t Corp., 547 F.3d 115, 126 (2d Cir. 2008) (relying on the Dictionary Act to read\\nthe verb “is” as “will be” in a provision of the Indian Gaming Regulatory Act, 25 U.S.C.\\n§ 2703(4)).\\n 17\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 18 of 33\\n\\n\\nof the Act of Congress surrounding the word at issue, or the texts of other related\\n\\ncongressional Acts, and this is simply an instance of the word’s ordinary\\n\\nmeaning.”).\\n\\n As noted earlier, § 12102(3)(A) provides the express, specialized definition\\n\\nof “regarded as having such an impairment” for purposes of the ADA. To meet the\\n\\nrequirements of “being regarded” as disabled under § 12102(3)(A), an individual\\n\\nmust establish, in relevant part, that “she has been subjected to an action prohibited\\n\\nunder this chapter because of an actual or perceived physical or mental\\n\\nimpairment.” 42 U.S.C. § 12102(3)(A). Notably, that statutory phrase in\\n\\n§ 12102(3)(A) contains no present tense verb for the Dictionary Act to carry into\\n\\nthe future. Rather, by its terms, for an employee to qualify as “being regarded as”\\n\\ndisabled, the employer must have perceived the employee as having a current\\n\\nexisting impairment at the time of the alleged discrimination.\\n\\n We reject the EEOC’s reading of § 12102(1)(C), as it ignores altogether the\\n\\nADA’s direction in § 12102(3)(A). See Corley v. United States, 556 U.S. 303,\\n\\n314, 129 S. Ct. 1558, 1566 (2009) (noting that it is “one of the most basic” canons\\n\\nof statutory interpretation that “a statute should be construed so that effect is given\\n\\nto all its provisions” (internal quotation marks and citations omitted)). “‘It is the\\n\\nduty of the court to give effect, if possible, to every clause and word of a statute.’”\\n\\n\\n\\n\\n 18\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 19 of 33\\n\\n\\nIn re Failla, 838 F.3d 1170, 1175 (11th Cir. 2016) (quoting Inhabitants of\\n\\nMontclair Twp. v. Ramsdell, 107 U.S. 147, 152, 2 S. Ct. 391, 395 (1883)).\\n\\n And to come full circle, in reading the ADA most naturally, we would\\n\\nexpect “regarded as having such an impairment” in § 12102(1)(C)—the paragraph\\n\\nrelied upon by the EEOC—to retain the same meaning as that phrase is explicitly\\n\\ngiven by its definition in § 12102(3)(A). To be sure, “[i]n all but the most unusual\\n\\nsituations, a single use of a statutory phrase must have a fixed meaning.” Cochise\\n\\nConsultancy, Inc. v. United States ex rel. Hunt, 587 U.S. __, __, 139 S. Ct. 1507,\\n\\n1512 (2019). This is especially so because the two paragraphs cross-reference one\\n\\nanother. Compare 42 U.S.C. § 12102(1)(C) (“being regarded as having such an\\n\\nimpairment (as described in paragraph (3) (emphasis added)), with id.\\n\\n§ 12102(3)(A) (“For purposes of paragraph (1)(C): (A) An individual meets the\\n\\nrequirement of ‘being regarded as having such an impairment’ if the individual\\n\\nestablishes . . . .” (emphasis added)).\\n\\n With these principles in mind, we conclude that the EEOC failed to state a\\n\\n“regarded as” disabled claim because it did not allege that Massage Envy\\n\\nperceived that Lowe had an existing impairment at the time it terminated her\\n\\nemployment. The district court did not err in dismissing the EEOC’s “regarded as”\\n\\nclaim.\\n\\n\\n\\n\\n 19\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 20 of 33\\n\\n\\n V. ASSOCIATION DISCRIMINATION\\n\\n Next, we turn to the EEOC’s claim of association discrimination under the\\n\\nADA. See 42 U.S.C. § 12112(b)(4). In this claim, the EEOC alleged that Massage\\n\\nEnvy violated the ADA by firing Lowe based on “her association with people in\\n\\nGhana whom Massage Envy believed to be disabled by Ebola.”\\n\\n Under § 12112(b)(4), the ADA defines “discriminate” to include “excluding\\n\\nor otherwise denying equal jobs or benefits to a qualified individual because of the\\n\\nknown disability of an individual with whom the qualified individual is known to\\n\\nhave a relationship or association.” 42 U.S.C. § 12112(b)(4).\\n\\n This association discrimination provision “was intended to protect qualified\\n\\nindividuals from adverse job actions based on ‘unfounded stereotypes and\\n\\nassumptions’ arising from the employees’ relationships with particular disabled\\n\\npersons.” Oliveras–Sifre v. Puerto Rico Dep’t of Health, 214 F.3d 23, 26 (1st Cir.\\n\\n2000). Indeed, the provision “was apparently inspired in part by testimony before\\n\\nHouse and Senate Subcommittees pertaining to a woman who was fired from her\\n\\nlong-held job because her employer found out that the woman’s son, who had\\n\\nbecome ill with AIDS, had moved into her house so she could care for him.” Den\\n\\nHartog v. Wasatch Acad., 129 F.3d 1076, 1082 (10th Cir. 1997).\\n\\n To state a prima facie claim for association discrimination, the plaintiff must\\n\\nshow: “(1) that she was subjected to an adverse employment action; (2) that she\\n\\n\\n 20\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 21 of 33\\n\\n\\nwas qualified for the job at that time; (3) that her employer knew at that time that\\n\\nshe had a relative [or associate] with a disability; and (4) that the adverse\\n\\nemployment action occurred under circumstances which raised a reasonable\\n\\ninference that the disability of the relative [or associate] was a determining factor\\n\\nin the employer’s decision.” Wascura v. City of S. Miami, 257 F.3d 1238, 1242\\n\\n(11th Cir. 2001) (internal quotation marks and alteration omitted). As to the third\\n\\nprong, while the nature of the relationship in question need not be familial, see 29\\n\\nC.F.R. § 1630.8, a plaintiff must show an association or relationship with a specific\\n\\ndisabled person or persons. See 42 U.S.C. § 12112(b)(4).\\n\\n Like the district court, we conclude that the EEOC failed to state an\\n\\nassociation discrimination claim under the ADA because it did not plausibly allege\\n\\nthat Massage Envy knew that Lowe had an association with a specific disabled\\n\\nindividual in Ghana when it terminated her employment. As a matter of fact, the\\n\\nonly specific person that Massage Envy knew that Lowe would associate with in\\n\\nGhana was her sister. But the EEOC never alleged that Lowe’s sister had Ebola or\\n\\nthat Massage Envy thought that her sister had Ebola. 5\\n\\n Instead, the EEOC contended, in essence, that Massage Envy believed Lowe\\n\\nmight come into contact with certain unknown individuals while traveling in\\n\\nGhana whom Massage Envy thought might have Ebola. This is too attenuated to\\n\\n\\n 5\\n Lowe’s intervenor complaint does not allege that either.\\n 21\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 22 of 33\\n\\n\\nstate an association discrimination claim under § 12112(b)(4) of the ADA, which\\n\\nrequires both a known association and a known disability. See 42 U.S.C.\\n\\n§ 12112(b)(4) (prohibiting employment discrimination “because of the known\\n\\ndisability of an individual with whom the qualified individual is known to have a\\n\\nrelationship or association” (emphasis added)).\\n\\n Moreover, the EEOC failed to plausibly allege a sufficient association or\\n\\nrelationship with said unknown individuals with Ebola in any event. Lowe\\n\\ncertainly was not traveling to Ghana to assist with the Ebola epidemic. See, e.g.,\\n\\n29 C.F.R. Pt. 1630, App. § 1630.8 (suggesting that an employee doing volunteer\\n\\nwork with people with AIDS might be the type of “association” contemplated by\\n\\n§ 12112(b)(4) of the ADA). And, of course, there was no Ebola outbreak in Ghana\\n\\nin the first place. But even if some people in Ghana did have the disease, the\\n\\nEEOC has merely alleged that Lowe might come into contact with those\\n\\nindividuals while traveling in the country. That is too loose of an association for\\n\\npurposes of a claim under § 12112(b)(4).\\n\\n In so concluding, we are persuaded by the Fourth Circuit’s decision in\\n\\nFreilich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (4th Cir. 2002). In\\n\\nFreilich, the defendant hospital terminated the plaintiff physician. Id. at 209. In\\n\\nher complaint, the physician raised, inter alia, a claim for association\\n\\ndiscrimination under the ADA, alleging that she was discriminated against because\\n\\n\\n 22\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 23 of 33\\n\\n\\nshe refused to end her advocacy on behalf of her dialysis patients and was denied\\n\\nvarious privileges because of her “association with and her relationship to patients\\n\\nwith disabilities.” Id. at 216 (internal quotation marks omitted). The Fourth\\n\\nCircuit disagreed, concluding that the physician’s complaint did not state an\\n\\nassociation discrimination claim because she alleged only “a loose association with\\n\\ndisabled patients.” Id. The Fourth Circuit reasoned that “such generalized\\n\\nreferences to association with disabled persons or to advocacy for a group of\\n\\ndisabled persons are not sufficient to state a claim for association[] discrimination\\n\\nunder the ADA.” Id. As “[e]very hospital employee can allege at least a loose\\n\\nassociation with disabled patients,” allowing the plaintiff physician “to proceed on\\n\\nsuch a basis would arm every hospital employee with a potential ADA complaint.”\\n\\nId. “A step of that magnitude is for Congress, not this court, to take.” Id.\\n\\n In this case, the EEOC has alleged an association even “looser” than the\\n\\nphysician and patient relationship in Freilich. Here, the EEOC’s entire claim is\\n\\nbased on Massage Envy’s concern that Lowe might come across some unknown\\n\\nperson with Ebola while traveling in Ghana. But the EEOC has not cited to, nor\\n\\nare we aware of, a single case involving an association discrimination claim\\n\\npremised on an employer’s belief about an employee’s potential casual association\\n\\nwith unknown disabled people.\\n\\n\\n\\n\\n 23\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 24 of 33\\n\\n\\n At the end of the day, we need not, and do not, weigh in on whether it was\\n\\nunfair or misguided for Massage Envy to fire Lowe after she refused to cancel her\\n\\ntrip to Ghana. As we have repeatedly and emphatically held, “[a]n employer may\\n\\nfire an employee for a good reason, a bad reason, a reason based on erroneous\\n\\nfacts, or for no reason at all, as long as its action is not for a discriminatory reason”\\n\\ncontrary to federal law. Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253, 1262\\n\\n(11th Cir. 2001) (internal quotation marks omitted). Our sole concern is whether\\n\\nMassage Envy violated the ADA. On that score, the answer is no. The district\\n\\ncourt correctly dismissed this claim.\\n\\n VI. UNLAWFUL INTERFERENCE\\n\\n On appeal, the EEOC does not raise any arguments as to its claim that\\n\\nMassage Envy interfered with Lowe’s exercise and enjoyment of her rights under\\n\\nthe ADA. However, Lowe does, arguing that the district court wrongly concluded\\n\\nthat it would be futile to allow the EEOC to amend its complaint to add this\\n\\ninterference claim. 6 We disagree.\\n\\n Under the Federal Rules of Civil Procedure, a district court “should freely\\n\\ngive leave [to amend a complaint] when justice so requires.” Fed. R. Civ. P.\\n\\n\\n\\n\\n 6\\n We review for abuse of discretion a district court’s refusal to grant leave to file an\\namended complaint, although we review de novo the “legal conclusion of whether a particular\\namendment to the complaint would be futile.” Harris v. Ivax Corp., 182 F.3d 799, 802 (11th Cir.\\n1999).\\n 24\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 25 of 33\\n\\n\\n15(a)(2). But a district court may deny a motion for leave to amend as futile\\n\\n“when the complaint as amended would still be properly dismissed.” Cockrell v.\\n\\nSparks, 510 F.3d 1307, 1310 (11th Cir. 2007).\\n\\n The district court properly denied the EEOC’s motion to file a second\\n\\namended complaint because its interference claim would have been subject to\\n\\ndismissal as a matter of law for failure to state a claim. 7 Under the ADA’s anti-\\n\\ninterference provision, it is “unlawful to coerce, intimidate, threaten, or interfere\\n\\nwith any individual in the exercise or enjoyment of, or on account of his or her\\n\\nhaving exercised or enjoyed, or on account of his or her having aided or\\n\\nencouraged any other individual in the exercise or enjoyment of, any right granted\\n\\nor protected by [the ADA].” 42 U.S.C. § 12203(b). And the EEOC’s interference\\n\\nclaim tracked that language, alleging that, when owner Wuchko told Lowe that she\\n\\nwould be fired if she did not cancel her Ghana trip, Massage Envy coerced,\\n\\nintimidated, and threatened Lowe and interfered with her exercise and enjoyment\\n\\nof rights under the ADA, in violation of 42 U.S.C. § 12203(b).\\n\\n The problem with the EEOC’s interference claim, however, is that, when\\n\\nMassage Envy fired Lowe, she had no existing rights under the ADA. Of course,\\n\\n\\n 7\\n The district court concluded, alternatively, that the interference claim was also due to be\\ndismissed for failure to exhaust administrative remedies. On appeal, the EEOC submits that it is\\nnot required to exhaust administrative remedies before filing suit, citing EEOC v. Caterpillar,\\nInc., 409 F.3d 831 (7th Cir. 2005). Because we agree with the district court that the interference\\nclaim fails to state a claim upon which relief can be granted, we need not address the court’s\\nalternative basis for dismissing it based on failure to exhaust administrative remedies.\\n 25\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 26 of 33\\n\\n\\nLowe was not actually disabled by Ebola and thus had no right to a reasonable\\n\\naccommodation under the ADA. She had not associated with, or even planned to\\n\\nassociate with, any known person disabled by Ebola either. Because Lowe had no\\n\\nrights under the ADA, Massage Envy could not and did not interfere with her\\n\\nexercise or enjoyment of those rights. Consequently, the EEOC could not have\\n\\nstated a plausible interference claim, and any amendment seeking to add such a\\n\\nclaim to the complaint would have been futile.\\n\\n VII. LOWE’S INTERVENOR COMPLAINT\\n\\n On appeal, Lowe also argues that the district court erred in not allowing her\\n\\nto intervene in this lawsuit.8 Lowe contends that, although she timely moved to\\n\\nintervene, the district court did not rule on the merits of her motion. Rather, after\\n\\ndetermining that the EEOC’s claims were due to be dismissed with prejudice, it\\n\\ndirected the clerk to terminate all pending motions as moot and close the case.\\n\\nLowe’s motion to intervene was among those terminated motions. We agree with\\n\\nLowe that the district court should have addressed the merits of her motion to\\n\\nintervene, rather than terminating it as moot.\\n\\n Although district courts enjoy broad discretion in deciding how best to\\n\\nmanage the cases before them, that discretion is not unfettered. Chudasama v.\\n\\n 8\\n We review the denial of a motion to intervene as of right de novo. Purcell v.\\nBankAtlantic Fin. Corp., 85 F.3d 1508, 1512 (11th Cir. 1996).\\n\\n\\n\\n 26\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 27 of 33\\n\\n\\nMazda Motor Corp., 123 F.3d 1353, 1366–67 (11th Cir. 1997). “When a litigant’s\\n\\nrights are materially prejudiced by the district court’s mismanagement of a case,\\n\\nwe must redress the [error].” Id. at 1367. As we have explained, “[f]ailure to\\n\\nconsider and rule on significant pretrial motions before issuing dispositive orders\\n\\ncan be an abuse of discretion” or constitute legal error. Id.\\n\\n Federal Rule of Civil Procedure 24(a)(1) states that “[o]n timely motion, the\\n\\ncourt must permit anyone to intervene who . . . is given an unconditional right to\\n\\nintervene by a federal statute.” Fed. R. Civ. P. 24(a). Under Title VII, 42 U.S.C.\\n\\n§ 2000e-5(f), as the aggrieved employee, Lowe had a right to intervene in this\\n\\naction brought by the EEOC. See 42 U.S.C. § 2000e-5(f)(1). The language of\\n\\n§ 2000e-5(f)(1) unambiguously gives employees an unconditional right to\\n\\nintervene in EEOC enforcement actions. Id. (“The person or persons aggrieved\\n\\nshall have the right to intervene in a civil action brought by the\\n\\nCommission . . . .”). In fact, once the EEOC files suit on its own, “the employee\\n\\nhas no independent cause of action.” EEOC v. Waffle House, Inc., 534 U.S. 279,\\n\\n291, 122 S. Ct. 754, 763 (2002). The employee’s only option is to intervene in the\\n\\nEEOC’s suit. Id.\\n\\n Here, Lowe timely filed her motion to intervene and she had an\\n\\nunconditional statutory right to intervene in this lawsuit. The district court thus\\n\\nhad no discretion to deny her intervention under Rule 24(a). By failing to consider\\n\\n\\n 27\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 28 of 33\\n\\n\\nand rule on the merits of Lowe’s motion before dismissing the EEOC’s complaint,\\n\\nthe district court effectively circumvented the mandates of both Rule 24(a) and\\n\\n§ 2000e-5(f). That was error. The district court should have considered the merits\\n\\nof Lowe’s motion to intervene.\\n\\n Nevertheless, because we have affirmed the district court’s dismissal of each\\n\\nof the EEOC’s claims, any error by the district court in declining to rule on Lowe’s\\n\\nmotion to intervene was harmless. The standard for harmless error is whether the\\n\\ncomplaining party’s substantial rights were infringed upon. United States v. Mar.\\n\\nLife Caribbean Ltd., 913 F.3d 1027, 1033 (11th Cir. 2019); Haney v. Mizell Mem’l\\n\\nHosp., 744 F.2d 1467, 1475 (11th Cir. 1984). The error by the district court\\n\\nprejudiced Lowe only if there is a “reasonable likelihood that the outcome would\\n\\nhave been different” if the district court had permitted Lowe to intervene in the\\n\\nlawsuit before proceeding to decide the merits of the EEOC’s claims. See Mar.\\n\\nLife Caribbean Ltd., 913 F.3d at 1033 (internal quotation marks omitted).\\n\\n Lowe was not prejudiced because there is no reasonable likelihood that the\\n\\noutcome of this proceeding would have been different had she intervened. In her\\n\\nintervenor complaint, Lowe advanced the exact same factual allegations, claims,\\n\\nand arguments that the EEOC had already made itself in the lawsuit. Just like the\\n\\nEEOC, Lowe claimed that Massage Envy perceived her as having a disability\\n\\n(Ebola) and fired her due to that perceived disability (Ebola), in violation of the\\n\\n\\n 28\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 29 of 33\\n\\n\\nADA. Although Lowe brought that “regarded as” disabled claim under both the\\n\\nADA and the FCRA, “disability-discrimination claims under the FCRA are\\n\\nanalyzed using the same framework as ADA claims.” Holly v. Clairson Indus.,\\n\\nLLC, 492 F.3d 1247, 1255 (11th Cir. 2007). Therefore, if the district court had\\n\\nallowed Lowe to intervene, the court would have ultimately dismissed Lowe’s\\n\\n“regarded as” disabled claim for the same reasons that it dismissed the EEOC’s\\n\\n“regarded as” disabled claim. The outcome of the proceeding would not have\\n\\ndiffered.\\n\\n In turn, we have affirmed on appeal the district court’s dismissal of the\\n\\nEEOC’s “regarded as” disabled claim, as well as its association discrimination and\\n\\ninterference claims. And in so ruling, we have considered every issue that Lowe\\n\\nraised in her briefing, including her vigorous arguments that the district court erred\\n\\nin dismissing all three of the EEOC’s ADA claims. For all of these reasons, Lowe\\n\\nsuffered no prejudice by the district court not allowing her to intervene in this\\n\\nproceeding. In light of these factual circumstances, we affirm the district court’s\\n\\ndismissal of Lowe’s motion to intervene because any error the court committed by\\n\\nfailing to address the merits of her motion was harmless.\\n\\n VIII. CONCLUSION\\n\\n\\n\\n\\n 29\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 30 of 33\\n\\n\\n For the foregoing reasons, we must affirm the district court’s final judgment\\n\\nin favor of Massage Envy.\\n\\n AFFIRMED.\\n\\n\\n\\n\\n 30\\n\\n Case: 18-11121 Date Filed: 09/12/2019 Page: 31 of 33\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4493,"cells":{"id":{"kind":"number","value":4660547,"string":"4,660,547"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"AA Suncoast Chiropractic Clinic, P.A. v. Progressive American Insurance Company"},"decision_date":{"kind":"string","value":"2019-09-12"},"docket_number":{"kind":"string","value":"17-13003"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before JORDAN, GRANT, and HULL, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"GRANT, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-13003 Date Filed: 09/12/2019 Page: 1 of 21\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-13003\\n ________________________\\n\\n D.C. Docket No. 8:15-cv-02543-RAL-MAP\\n\\n\\nAA SUNCOAST CHIROPRACTIC CLINIC, P.A., et al., on behalf of themselves\\nand others similarly situated,\\n\\n Plaintiffs-Appellees,\\n\\n versus\\n\\nPROGRESSIVE AMERICAN INSURANCE COMPANY, et al.,\\n\\n Defendants-Appellants.\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (September 12, 2019)\\nBefore JORDAN, GRANT, and HULL, Circuit Judges.\\nGRANT, Circuit Judge:\\n\\n A trio of healthcare providers brought a class action against an insurance\\ncompany over a claims-handling process that they argue is illegal under Florida\\nlaw. The district court certified an injunction class under Federal Rule of Civil\\n\\nProcedure 23(b)(2), but it refused to certify a damages class under Rule 23(b)(3).\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 2 of 21\\n\\n\\n\\nOn interlocutory appeal, the question is whether the injunction class should have\\nbeen certified.\\n\\n We have no occasion today to disapprove—or approve—of complaints or\\nclasses that are not before us. In this interlocutory appeal, we consider only\\nwhether the class as certified, proceeding on the complaint as alleged, is viable.\\nAnd because what this “injunction” class really wants is damages—and more\\nprecisely, because the injunctive remedy that this class seeks would be improper—\\nthe answer to that question is no.\\n\\n I.\\n Under Florida law, car insurance policies must provide personal injury\\nprotection (PIP) benefits up to $10,000. Fla. Stat. § 627.736(1). But under a 2012\\namendment to that law, not every injured motorist will be eligible to access all\\n$10,000 in benefits. See 2012 Fla. Laws Ch. 2012–197 § 10. If a person has an\\n“emergency medical condition” (EMC), 1 he is eligible for all $10,000 in benefits.\\n\\nFla. Stat. § 627.736(1)(a)(3). If not, his coverage is capped at $2,500. Id.\\n§ 627.736(1)(a)(4). And we have held that in cases where no EMC determination\\nis made one way or the other, the default is the $2,500 cap. Robbins v. Garrison\\n\\nProp. & Cas. Ins. Co., 809 F.3d 583, 588 (11th Cir. 2015).\\n This case is a dispute about who is allowed to make the negative EMC\\ndetermination. The plaintiffs—two chiropractic providers and a medical provider\\n\\n1\\n Florida law defines an “Emergency medical condition” as “a medical condition manifesting\\nitself by acute symptoms of sufficient severity, which may include severe pain, such that the\\nabsence of immediate medical attention could reasonably be expected to result in any of the\\nfollowing: (a) Serious jeopardy to patient health. (b) Serious impairment to bodily functions.\\n(c) Serious dysfunction of any bodily organ or part.” Fla. Stat. § 627.732(16).\\n 2\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 3 of 21\\n\\n\\n\\nthat treated injured motorists insured by Progressive who thereafter assigned their\\ninsurance benefits to the providers (collectively, “Suncoast”)—allege that the\\n\\ndefendants—the Progressive Corporation and two of its insurance underwriters,\\nProgressive American Insurance Company and Progressive Select Insurance\\nCompany (collectively, “Progressive”)—have denied PIP insurance benefits in an\\nillegal manner. Specifically, Suncoast alleges that Progressive relied on negative\\nEMC determinations from non-treating healthcare providers to limit coverage to\\n$2,500, and that Florida law allows only treating providers to make negative EMC\\n\\ndeterminations.\\n Suncoast sued Progressive in Florida state court and sought class-action\\nstatus. Progressive removed the case to federal court under the Class Action\\nFairness Act, which grants federal jurisdiction over certain class actions where the\\namount in controversy exceeds $5 million and there is minimal diversity. In its\\nsecond amended complaint, Suncoast asserted two counts: one for declaratory and\\ninjunctive relief and another for damages based on breach of contract. The\\nrequested declaration would 1) declare unlawful Progressive’s policy provision\\npurporting to allow reductions in coverage based on negative EMC determinations\\nby non-treating physicians, 2) declare unlawful Progressive’s practice of relying on\\nsuch determinations, and 3) find that Progressive is not permitted to disregard an\\naffirmative EMC determination. The requested injunction would 1) restore\\ncoverage limits to $10,000 for affected policies, 2) enjoin Progressive from\\nincluding policy provisions that the declaration found unlawful, 3) notify affected\\npolicyholders and providers, and 4) award costs and attorneys’ fees. The breach-\\n\\n 3\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 4 of 21\\n\\n\\n\\nof-contract claim sought damages for underpaid benefits along with interest, costs,\\nand attorneys’ fees.\\n\\n Suncoast moved to certify two classes: an injunction class under Federal\\nRule of Civil Procedure 23(b)(2) for count one, and a damages subclass under Rule\\n23(b)(3) for count two. The proposed injunction class was defined to include:\\n\\n A. All Qualified Providers who: (i) received an assignment of benefits from\\n a Claimant under a Progressive PIP policy, (ii) provided initial or follow up\\n medical services to a Claimant after January 1, 2013, and (iii) were given\\n notice by Progressive that available PIP benefits were reduced to $2,500\\n because of a Negative EMC Determination that Progressive obtained from a\\n Non-treating Provider; and\\n\\n B. All Claimants who were notified that Progressive reduced available PIP\\n benefits to $2,500 because of a Negative EMC Determination Progressive\\n obtained from a Non-treating Provider.\\n\\nThe damages subclass was defined to include:\\n\\n All Qualified Provider Class Members: (i) who were not paid in full for their\\n services, (ii) who made a pre-suit demand to Progressive for payment\\n pursuant to § 627.736(10), and (iii) where Progressive received\\n documentation from a duly licensed physician, dentist, physician’s assistant\\n or advanced registered nurse practitioner that the Claimant had an\\n Emergency Medical Condition.\\n\\nThe district court refused to certify the damages subclass—which, under Rule\\n23(b)(3), would require the court to find predominance and superiority—because\\n\\ndoing so would necessitate individualized assessments and case management. But\\nit certified the injunction class, in part because Suncoast “assured” it that “once the\\n\\n\\n\\n\\n 4\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 5 of 21\\n\\n\\n\\nlegal issue is determined, there will be no more supervision required to determine\\nindividual damages.”\\n\\n Progressive sought permission for an interlocutory appeal of the injunction\\nclass certification. See Fed. R. Civ. P. 23(f) (“A court of appeals may permit an\\nappeal from an order granting or denying class-action certification under this rule\\n. . . .”). A panel of this Court granted that request. The only issue on interlocutory\\nappeal is whether the injunction class should have been certified—Suncoast has\\nnot appealed the denial of certification of the damages subclass, and the merits are\\n\\nnot yet at issue.\\n II.\\n We review a class certification decision for abuse of discretion. Brown v.\\nElectrolux Home Prods., Inc., 817 F.3d 1225, 1233 (11th Cir. 2016). “But abuse\\nof discretion is a continuum, and in the context of class actions, review for abuse of\\ndiscretion often does not differ greatly from review for error.” Id. (internal\\nquotation marks and citations omitted). In conducting this analysis, we review the\\ndistrict court’s factual determinations for clear error and its legal determinations de\\nnovo. Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1264–65 (11th Cir. 2009). The\\nparty seeking class certification bears the burden to establish its propriety. Id. at\\n1265.\\n III.\\n A.\\n Rule 23 of the Federal Rules of Civil Procedure lays down the ground rules\\nfor certifying a class action. To win certification under Rule 23, every class must\\n\\n 5\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 6 of 21\\n\\n\\n\\npresent a named plaintiff who has standing to bring the claim. See Prado-Steiman\\nex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000). Every class must be\\n\\n“adequately defined and clearly ascertainable.” Little v. T-Mobile USA, Inc., 691\\nF.3d 1302, 1304 (11th Cir. 2012) (citation omitted). And every class must satisfy\\nthe four requirements of Rule 23(a): numerosity, commonality, typicality, and\\nadequacy of representation. Id.\\n From there, the rules differ depending on what type of class the plaintiff\\npurports to represent. For an injunction class under Rule 23(b)(2), the plaintiff\\n\\nmust show that “the party opposing the class has acted or refused to act on grounds\\nthat apply generally to the class, so that final injunctive relief or corresponding\\ndeclaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P.\\n23(b)(2). For a damages class under Rule 23(b)(3), the plaintiff must show that\\n“questions of law or fact common to class members predominate over any\\nquestions affecting only individual members, and that a class action is superior to\\nother available methods for fairly and efficiently adjudicating the controversy.”\\nFed. R. Civ. P. 23(b)(3). Because these rules establish different threshold\\ncertification requirements and different procedural safeguards—protective of both\\ndefendants and absent class members—it is important that courts insist on the\\nproper treatment of different types of classes. Injunction classes can go forward\\nunder Rule 23(b)(2); damages classes must satisfy Rule 23(b)(3). See Wal-Mart\\nStores, Inc. v. Dukes, 564 U.S. 338, 361–63 (2011).2\\n\\n2\\n Before Wal-Mart, we allowed plaintiffs to seek monetary relief through a Rule 23(b)(2)\\ninjunction class if the monetary relief was “incidental” to injunctive relief—that is, if it would\\n\\n\\n 6\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 7 of 21\\n\\n\\n\\n B.\\n The district court already concluded that a subclass of this class cannot\\n\\nproceed to seek damages under Rule 23(b)(3) because individualized assessments\\npreclude certification of a damages class under that subsection. 3 This is because,\\neven if Suncoast is right on the merits about who may issue negative EMC\\n\\ndeterminations under Florida law, each and every member of the damages subclass\\nwould have to jump through a series of hoops to establish an individualized\\nentitlement to damages in the district court. Analyzing those individualized issues\\nunder the Rule 23(b)(3) standard, the district court has already held that if\\nmonetary relief is on the table, class certification is off of it.\\n Instead of appealing that decision and fighting this case on the Rule 23(b)(3)\\n\\ndamages battleground—with its predominance and superiority requirements—\\nSuncoast seeks to avoid these problems by styling its claim for relief as injunctive\\nonly. Suncoast assures us that it is not seeking any damages award at all (at least\\nnot as a class). Instead, it simply wants a declaration that Progressive’s practice of\\nrelying on non-treating physicians is unlawful, along with an injunction.\\n The problem with this argument is that the injunction that Suncoast has\\nrequested is not an injunction at all, and its declaratory request is both minimal and\\n\\nflow “automatically” to class members without “complex individualized determinations.”\\nMurray v. Auslander, 244 F.3d 807, 812 (11th Cir. 2001) (internal quotation marks and citation\\nomitted). In Wal-Mart, the Supreme Court appeared to lower the gate on that pathway to\\ncertification but did not fully slam it shut. See 564 U.S. at 365–66. We need not go down this\\nroad, however, because, as this opinion describes, the plaintiffs’ damages claims would not be\\n“incidental” to injunctive relief.\\n3\\n Only the providers were included in the proposed damages subclass because the individual\\nclaimants have already assigned their claims to the providers.\\n 7\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 8 of 21\\n\\n\\n\\nunconnected to the members of its class. Suncoast’s requested relief is not\\ndesigned to address the treatment of future claims; it would instead, according to\\n\\nSuncoast itself, “restore claimants to the claims-handling process free of the\\nimproper cap on PIP benefits imposed by Progressive.” In other words, the\\ninjunction would mandate that Progressive reprocess all claims previously capped\\nat $2,500 based on an outside EMC determination. That is how Suncoast frames\\nits injury—not as the loss of money, but as the loss of an opportunity to have\\nreceived money in the past for a claim that was denied. In Suncoast’s own words:\\n\\n“Class members have been injured because Progressive’s unlawful practice—use\\nof a negative EMC determination by a non-treating provider—denied them the\\nopportunity, guaranteed by a Florida statutes [sic], to seek PIP benefits exceeding\\n$2,500.” This strategy of converting its claim for damages into a claim for\\ninjunctive relief sidesteps the Rule 23(b)(3) problems by shaving away all the\\nissues that would require individualized determinations. But what the damages-to-\\ninjunction strategy cannot manage to do is request relief that would prevent future\\ninjury rather than redress past harms.\\n C.\\n In the real world, there are likely people with a future interest in having\\nProgressive manage its EMC determinations in a particular way. There may even\\nbe people who are currently forgoing treatment for a past injury because their\\nbenefits have been exhausted under Progressive’s current EMC approach. But the\\nproblem for Suncoast is that those are not the claims that it has pleaded.\\nSuncoast’s attempt to excise all the damages-based problems with certification\\n\\n 8\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 9 of 21\\n\\n\\n\\nthus runs into a fundamental issue: its creative conception of injunctive relief is not\\na viable theory of recovery under Rule 23(b)(2). 4 As we have said, an injunction\\n\\nmust be geared toward preventing future harm. See, e.g., Houston v. Marod\\nSupermarkets, Inc., 733 F.3d 1323, 1328–29 (11th Cir. 2013). Suncoast hammers\\naway at the fact that it no longer seeks classwide monetary damages, but no\\n\\namount of hammering can make its square peg fit into Rule 23(b)(2)’s round hole.\\nEverything about Suncoast’s claim—from its theory of standing to its request for\\nrelief to its class definition—looks back at past harms.\\n First, consider Suncoast’s theory of standing in this case. Because not every\\nclass member would ultimately be entitled to any monetary award, Suncoast\\nframes its injury as a lost opportunity to have a fair shake in the claims-handling\\n\\nprocess. But Suncoast’s own descriptions make clear that this purported injury is\\nentirely retrospective. Suncoast argues, for example, that “Progressive’s unlawful\\npractice denied each Class member a fair opportunity” to prove an entitlement to\\nbenefits over $2,500. Appellee Br. at 23 (emphasis added). Again: “This\\nunlawful cessation of claims-handling was an injury-in-fact sufficient to confer\\nArticle III standing on each Class member.” Id. (emphasis added). And again:\\n“Class members have been injured because Progressive’s unlawful practice—use\\nof a negative EMC determination by a non-treating provider—denied them the\\nopportunity, guaranteed by a Florida statutes [sic], to seek PIP benefits exceeding\\n$2,500.” Id. at 25 (emphases added). In plain English, Suncoast argues that\\n\\n4\\n This analysis requires some engagement with the merits of the plaintiffs’ injunctive-relief\\nclaim. That “cannot be helped” and is frequently necessary in Rule 23 analyses. Wal-Mart, 564\\nU.S. at 350–52.\\n 9\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 10 of 21\\n\\n\\n\\nProgressive short-circuited its review of past insurance claims when it denied them\\nbased on an outside EMC determination, and that this (past) short-circuiting is a\\n\\nharm of its own—regardless of whether any individual claim could have been\\ndenied for other reasons. It now categorizes its desire to have those claims\\nreprocessed as a future interest.\\n Simply put, the denial of insurance coverage in this case—whether framed\\nas lost money, or as a lost opportunity to get money—is a retrospective harm.\\nSuncoast counters that “Progressive continues to refuse to provide further claims-\\n\\nhandling based on its unlawful EMC practices, so Plaintiffs plainly have a forward-\\nlooking interest in an injunction requiring Progressive to resume claims handling.”\\nId. at 48 n.19. What Suncoast is not saying in that statement is that it has an\\ninterest in the proper handling of future claims. Instead, it has an ongoing interest\\nin getting paid for past claims that have been rejected. But a “forward-looking\\ninterest” in redressing a past harm—the failure to pay all benefits allegedly owed\\nfor past claims that were already denied—is not the same thing as a future injury.\\nAnd without any threat of future injury, injunctive relief is unavailable.\\n Second, Suncoast’s request for relief further betrays the retrospective nature\\nof its injury. Suncoast seeks a declaration stating that Progressive’s practices are\\nunlawful and asks the court to “[r]einstat[e] the full amount of PIP coverage, in the\\namount of $10,000, which should have been available under the affected policies.”\\nIn its brief, Suncoast describes this relief as “requiring Progressive to resume\\nhandling the Class members’ PIP claims in accordance with Florida law.” To\\nbegin, those two requests could be interpreted to describe different forms of relief.\\n\\n 10\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 11 of 21\\n\\n\\n\\nBut the only outcome that any conception of this intermediary relief could ever\\nlead to—even in the best-case scenario for any particular claimant—would be full\\n\\npayment of coverage benefits that have already been denied, for claims that were\\nalready processed, for injuries that were already suffered. The requested relief,\\nagain, looks backward to an injury already suffered.\\n True enough, Suncoast’s complaint also asked the district court to enjoin\\nProgressive “from including provisions in their policies which purport to allow the\\nabove, illegal conduct.” But that aside in its complaint cannot save this particular\\n\\nclass for two reasons. As an initial matter, justifying a class that is all about\\ndamages with a de minimis request for injunctive relief is like trying to prop up a\\ntower with a toothpick. See Robinson v. Metro-North Commuter R.R. Co., 267\\nF.3d 147, 164 (2d Cir. 2001) (“Insignificant or sham requests for injunctive relief\\nshould not provide cover for (b)(2) certification of claims that are brought\\nessentially for monetary recovery.”).5 That same restriction stands in cases (like\\n\\nthis one) where the plaintiff has ostensibly disavowed any claim for damages, but\\nwhere the nature of the claim says otherwise. That is not to say that a properly\\n\\n\\n5\\n The Second Circuit’s statement in Robinson was an elaboration of its “predominance” test,\\nunder which it would allow a Rule 23(b)(2) class to seek monetary relief so long as injunctive or\\ndeclaratory relief “predominates.” 267 F.3d at 162–64. We have imposed an even stricter bar,\\nstating that “[m]onetary relief predominates in (b)(2) class actions unless it is incidental to\\nrequested injunctive or declaratory relief.” Murray, 244 F.3d at 812 (citation omitted). In Wal-\\nMart, the Supreme Court expressly rejected the “predominance” test, and questioned (but did not\\nultimately rule on) the “incidental” test. 564 U.S. at 363–67. We need not—indeed, cannot—\\nreconsider the “incidental” test in light of Wal-Mart. See, e.g., United States v. Kaley, 579 F.3d\\n1246, 1255 (11th Cir. 2009) (noting that a Supreme Court case must “actually abrogate or\\ndirectly conflict with, as opposed to merely weaken, the holding of the prior panel” to overcome\\nprior panel precedent rule). For present purposes, the point is that Suncoast’s claim would fail\\neven under the more-generous Robinson test.\\n 11\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 12 of 21\\n\\n\\n\\ndesigned class seeking only this declaratory relief could not survive, but that is not\\nthe case that Suncoast has brought us.\\n\\n Third, then, even if Suncoast’s claim for injunctive and declaratory relief\\nwere more than a fig leaf attempting to cover its demand for past relief, it would\\nrun headlong into another problem: Suncoast’s class definition itself reveals that\\nSuncoast is seeking retrospective relief. The proposed injunction class includes:\\n\\n A. All Qualified Providers who: (i) received an assignment of benefits from\\n a Claimant under a Progressive PIP policy, (ii) provided initial or follow up\\n medical services to a Claimant after January 1, 2013, and (iii) were given\\n notice by Progressive that available PIP benefits were reduced to $2,500\\n because of a Negative EMC Determination that Progressive obtained from a\\n Non-treating Provider; and\\n\\n B. All Claimants who were notified that Progressive reduced available PIP\\n benefits to $2,500 because of a Negative EMC Determination Progressive\\n obtained from a Non-treating Provider.\\n\\nNothing in that definition envisions future harm. For a claimant, any future injury\\nhinges on “the possibility that he may someday be in another car accident; sustain\\nan injury entitling him to PIP benefits; and still be insured by [Progressive] under\\nthe same or a similar policy being interpreted the same way, thereby having this\\nissue present itself again.” A&M Gerber Chiropractic LLC v. GEICO Gen. Ins.\\n\\nCo., 925 F.3d 1205, 1215 (11th Cir. 2019). The chance that lightning might strike\\ntwice is not enough to justify injunctive relief.\\n As for providers, Suncoast does allege that it and others like it “continue to\\n\\ntreat Progressive insureds, and have a reasonable expectation that the dispute, and\\nattendant harms, regarding Progressive’s EMC Paper Review process will be\\n\\n 12\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 13 of 21\\n\\n\\n\\nongoing into the future.” 6 While a class may exist that would match this\\nallegation, the class as defined here does not—it is both fatally overinclusive and\\n\\nunderinclusive on that score. It is overinclusive because it fails to limit\\nmembership to providers who are likely to see more Progressive insureds, and\\ntherefore likely to run into this problem again. Indeed, Progressive asserts that two\\nof the named plaintiffs, Suncoast itself and Tampa Bay Spine, “no longer treat PIP\\ninsureds.” Suncoast responds that “Progressive cites nothing to support this\\nassertion.” Fair enough—but whether or not Suncoast and Tampa Bay Spine\\n\\ncontinue to treat PIP-insured patients, the point is that the class definition would\\nsweep in them (and others like them). Cf. Wal-Mart, 564 U.S. at 365 (“[E]ven\\nthough the validity of a (b)(2) class depends on whether ‘final injunctive relief or\\ncorresponding declaratory relief is appropriate respecting the class as a whole,’\\nRule 23(b)(2) (emphasis added), about half the members of the class approved by\\nthe Ninth Circuit have no claim for injunctive or declaratory relief at all.”).\\n The class is also underinclusive because it fails to account for providers who\\nhave not yet faced denied claims on the allegedly wrongful basis but expect to do\\nso in the future—it only applies to those providers already injured when past\\nclaims were denied. All of this presents more evidence that the relief sought in this\\n\\n\\n6\\n We note that Gerber’s standing analysis relied in part on its conclusion that the provider’s\\ninjuries, as an assignee of rights from an insured, were limited to the injuries that the insured had\\nsuffered—such that any injury the provider suffered in its own right was “beside the point.” 925\\nF.3d at 1215. We understand that analysis as dependent on the unique context of that case, in\\nwhich the provider had “specifically tailored its complaint to avoid alleging future injury (as it\\ndid with the money damages).” Id. But where (as here) a provider has not disclaimed its own\\ninjuries, it does not lose any independent interests it may have simply by picking up additional\\nrights from an assignor.\\n 13\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 14 of 21\\n\\n\\n\\ncase is retrospective, not prospective. Cf. Bolin v. Sears, Roebuck & Co., 231 F.3d\\n970, 978 (5th Cir. 2000) (“These plaintiffs have nothing to gain from an injunction,\\n\\nand the declaratory relief they seek serves only to facilitate the award of damages.\\nThus, the definition of the class shows that most of the plaintiffs are seeking only\\ndamages.” (footnote omitted)). “What follows from this,” as in Wal-Mart, “is not\\nthat some arbitrary limitation on class membership should be imposed,” but rather\\nthat Suncoast’s claim for retrospective relief “should not be certified under Rule\\n23(b)(2) at all.” Wal-Mart, 564 U.S. at 365. Simply put, this class is not suitably\\n\\ncrafted for prospective relief.\\n To be clear: when we say that this class is not suitably crafted for\\nprospective relief, we make no statement about whether other classes may pass\\nmuster. As Suncoast alleges, for example, some providers (though perhaps not the\\nones here, see supra at 13) may reasonably expect to see injured claimants on an\\nongoing basis, and therefore may be able to demonstrate the sort of future harm\\nthat injunctive relief requires. Similarly, some claimants may face a real prospect\\nof future harm if they have exhausted their benefits up to $2,500 and are forgoing\\nadditional—that is to say, future—treatment because their insurer has indicated it\\nwill not be covered. But for all the reasons we have discussed—Suncoast’s theory\\nof standing (predicated on a lost opportunity), its claim for relief (seeking\\nreprocessing of past claims), and its class definition (both over- and\\nunderinclusive)—this is not that case.\\n In the end, the retrospective nature of Suncoast’s class and claim make clear\\nthat an injunction is not the right remedy in this case—indeed, it is not really the\\n\\n 14\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 15 of 21\\n\\n\\n\\nremedy that Suncoast’s class is seeking. And because an injunction is not the right\\nremedy, Rule 23(b)(2) is not the right path to class certification: “the policies\\n\\nunderlying the requirements of (b)(3) should not be subverted by recasting and\\nbifurcating every class suit for damage as one for final declaratory relief of liability\\nunder (b)(2), followed by a class suit for damages under (b)(3).” Holmes v.\\nContinental Can Co., 706 F.2d 1144, 1158 n.10 (11th Cir. 1983) (internal\\nquotation marks and citation omitted); see also 7AA Charles Alan Wright &\\nArthur R. Miller, Federal Practice and Procedure § 1784.1 (3d ed. 2005) (“If\\n\\ninjunctive relief does not appear suitable or serious, Rule 23(b)(2) certification will\\nbe denied.”). “In short, the plaintiffs are not really interested in final prospective\\nequitable relief at all; they are singularly focused on recovering a retrospective\\ndamages remedy, and Rule 23(b)(3), not (b)(2), governs certification of a damages\\nclass.” Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 895 (7th Cir.\\n2011).\\n D.\\n Suncoast’s request for declaratory relief does not save the class. For one\\nthing, like an injunction, declaratory relief requires a likelihood of future harm.\\nMalowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1346–47 (11th Cir.\\n1999); see also Gerber, 925 F.3d at 1211 (“Accordingly, if a plaintiff does not\\nassert a reasonable expectation of future injury, he lacks standing to bring an action\\nfor declaratory relief.” (internal quotation marks, alterations, and citation omitted)).\\nAnd as both we and the Supreme Court have made clear, this future interest must\\nbe alleged by the plaintiff rather than imagined by the court: “In order to\\n\\n 15\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 16 of 21\\n\\n\\n\\ndemonstrate that a case or controversy exists to meet the Article III standing\\nrequirement when a plaintiff is seeking injunctive or declaratory relief, a plaintiff\\n\\nmust allege facts from which it appears there is a substantial likelihood that he will\\nsuffer injury in the future.” Malowney, 193 F.3d at 1346–47 (citing City of Los\\nAngeles v. Lyons, 461 U.S. 95, 102 (1983), and Cone Corp. v. Fla. Dep’t of\\nTransp., 921 F.2d 1190, 1205 (11th Cir. 1991)).\\n We will not belabor the points we have made regarding the retrospective\\nnature of the class definition. But we will make the additional point that, in the\\n\\nclass-action context, a request for declaratory relief must “correspond[]” with\\ninjunctive relief. Fed. R. Civ. P. 23(b)(2). “Declaratory relief ‘corresponds’ to\\ninjunctive relief when as a practical matter it affords injunctive relief or serves as a\\nbasis for later injunctive relief,” and Rule 23(b)(2) “does not extend to cases in\\nwhich the appropriate final relief relates exclusively or predominantly to money\\ndamages.” Fed. R. Civ. P. 23(b)(2) advisory committee’s note to 1966\\namendment. It follows that “an action seeking a declaration concerning [the]\\ndefendant’s conduct that appears designed simply to lay the basis for a damage\\naward rather than injunctive relief would not qualify under Rule 23(b)(2).” Wright\\n& Miller, supra, § 1775; see also Christ v. Beneficial Corp., 547 F.3d 1292, 1298\\n& n.11 (11th Cir. 2008) (concluding that unavailability of injunctive relief renders\\n(b)(2) certification improper and noting that the “mere recitation of a request for\\n\\n\\n\\n\\n 16\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 17 of 21\\n\\n\\n\\ndeclaratory relief cannot transform damages claims into a Rule 23(b)(2) class\\naction” (internal quotation marks and citation omitted)).7\\n\\n Because the declaratory relief sought here does no more than that, it does not\\n“correspond” to injunctive relief as Rule 23(b)(2) requires. To be sure, some cases\\nallow for the possibility that a party’s request for declaratory relief may eventually\\n\\nserve as a route to damages. But none of those cases disclaims the traditional\\nrequirements for injunctive or declaratory relief—including the requirement that\\nthe plaintiff seeks relief for a future harm. See, e.g., Fortner v. Thomas, 983 F.2d\\n1024, 1031 (11th Cir. 1993) (explaining that prisoners are not barred from seeking\\ndamages after their class action seeking an injunction to address ongoing prison\\nconditions).\\n\\n * * *\\n This case is about damages. Rule 23(b)(3) is the proper mechanism for\\ncertifying a damages class. But because the plaintiffs’ damages claims are studded\\nwith individualized issues that put Rule 23(b)(3) certification out of the question,\\nthey have sought instead to lop off all the damages-based warts and recast their\\nclaim as one for injunctive relief under Rule 23(b)(2). That ploy may have avoided\\n\\n7\\n Some dicta from our decision in Gerber could be read as condoning a party’s request for\\ninjunctive relief as a route to damages. See 925 F.3d at 1214 n.3. But no one should read\\nGerber as watering down the traditional requirements for an injunction or a declaration in the\\nRule 23 context. For one thing, the relevant discussion in Gerber dealt with Article III standing,\\nnot the criteria for class certification. And at any rate, no one is arguing that injunctive relief can\\nnever serve as a prelude to a claim for money damages—but in such a case, a party still must\\nmeet all the traditional requirements for injunctive relief. See, e.g., Fortner v. Thomas, 983 F.2d\\n1024, 1031 (11th Cir. 1993). That includes the requirement that a plaintiff seeking an injunction\\nmust demonstrate a risk of future harm. And where a party is unable to meet those requirements,\\ninjunctive relief is inappropriate, regardless of whether it is sought for its own sake or because it\\nmight pave the way for a damages claim in subsequent litigation.\\n 17\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 18 of 21\\n\\n\\n\\nRule 23(b)(3)’s strictures, but in the end it fails because an injunction is an\\ninappropriate remedy for the class as certified. Cf. Nat’l Endowment for the Arts v.\\n\\nFinley, 524 U.S. 569, 590 (1998) (Scalia, J., concurring in the judgment) (“The\\noperation was a success, but the patient died.”).\\nREVERSED AND REMANDED.\\n\\n\\n\\n\\n 18\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 19 of 21\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4437800/\", \"author_raw\": \"GRANT, Circuit Judge:\"}, {\"author\": \"JORDAN, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"JORDAN, Circuit Judge, concurring in the judgment.\\n\\n I agree that we should reverse the order certifying a class under Rule 23(b)(2),\\n\\nbut would do so on a different and more narrow ground. I therefore concur only in\\n\\nthe judgment.\\n\\n In Robbins v. Garrison Property & Casualty Ins. Co., 809 F.3d 583, 587–88\\n\\n(11th Cir. 2015), we interpreted Fla. Stat. § 627.736 and held that an insurer is\\n\\nrequired to pay more than $2,500 in PIP benefits only when a listed medical provider\\n\\nhas determined that the injured person had an emergency medical condition (an\\n\\n“EMC”). Since then, two Florida appellate courts have come to the same conclusion.\\n\\nSee Progressive American Ins. Co. v. Garrido, 211 So.3d 1086, 1093 (Fla. Dist. Ct.\\n\\nApp. 2017); Medical Ctr. of Palm Beaches v. USAA Cas. Ins. Co., 202 So.3d 88, 92\\n\\n(Fla. Dist. Ct. App. 2016). So, if there is no positive EMC determination, the PIP\\n\\npayments to an injured person (or a provider who has obtained an assignment of\\n\\nbenefits from such a person) are capped at $2,500. An insurer who pays only $2,500\\n\\nin PIP benefits in the absence of a positive EMC determination—no matter its\\n\\nreasons for doing so—is not violating the statute and therefore not causing harm to\\n\\ninjured persons or their medical providers.\\n\\n Although the plaintiffs here seek a declaration (with injunctive relief to\\n\\nfollow) that certain insurers are violating the statute by having non-treating health\\n\\ncare providers issue negative EMC determinations, the Rule 23(b)(2) class certified\\n\\n\\n 19\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 20 of 21\\n\\n\\nby the district court is fatally overinclusive. As the insurers persuasively argue, see\\n\\nBr. for Appellants at 25–27, the class as defined includes medical providers who\\n\\nhave rendered services to injured persons in the absence of a positive EMC\\n\\ndetermination. Under Robbins, those providers have not suffered any harm due to\\n\\nthe insurers’ limitation of PIP benefits to $2,500—whether or not the insurers have\\n\\nimproperly obtained negative EMC determinations—and do not have a basis for\\n\\nseeking declaratory or injunctive relief. That means that the class as certified cannot\\n\\nstand.\\n\\n The Supreme Court has not definitively told us whether the inclusion of class\\n\\nmembers who have not suffered the same harm as the named class representatives\\n\\n(or any harm at all) is an Article III problem or a Rule 23 problem. See Tyson Foods\\n\\nv. Bouaphekeo, 136 S. Ct. 1036, 1050 (2016) (recognizing that the issue is of “great\\n\\nimportance” but declining to address it because the petitioner abandoned it); Gratz\\n\\nv. Bollinger, 539 U.S. 244, 263–64 & n.15 (2003) (identifying but not deciding the\\n\\nissue while noting “tension” in prior Supreme Court cases). But regardless of the\\n\\nappropriate analytical lens, it is a problem. To avoid a constitutional Article III\\n\\nruling, I would approach the issue under Rule 23 and hold that the class as defined\\n\\nshould be decertified. See, e.g., William B. Rubenstein et al., 1 Newberg on Class\\n\\nActions § 2.3 (5th ed. 2019 Supp.) (“Most courts concerned about the standing of\\n\\nabsent class members are in fact concerned about whether the class is properly\\n\\n\\n 20\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 21 of 21\\n\\n\\ndefined, as the issue tends to arise in the context of class certification, not\\n\\njurisdiction. In this sense, the problem of un-injured absent class members is a\\n\\nproblem of Rule 23, not of Article III.”); Avritt v. Reliastar Life Ins. Co., 615 F.3d\\n\\n1023, 1034 (8th Cir. 2010) (“A class must be defined in such a way that anyone\\n\\nwithin it would have standing.”).\\n\\n\\n\\n\\n 21\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4437800/\", \"author_raw\": \"JORDAN, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"JORDAN"},"judge2":{"kind":"string","value":"GRANT"},"judge3":{"kind":"string","value":"HULL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JORDAN\": \", Circuit\", \"GRANT\": \", Circuit\", \"HULL\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4660547/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: AA Suncoast Chiropractic Clinic, P.A. v. Progressive American Insurance Company\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-09-12\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-13003 Date Filed: 09/12/2019 Page: 1 of 21\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-13003\n ________________________\n\n D.C. Docket No. 8:15-cv-02543-RAL-MAP\n\n\nAA SUNCOAST CHIROPRACTIC CLINIC, P.A., et al., on behalf of themselves\nand others similarly situated,\n\n Plaintiffs-Appellees,\n\n versus\n\nPROGRESSIVE AMERICAN INSURANCE COMPANY, et al.,\n\n Defendants-Appellants.\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n ________________________\n\n (September 12, 2019)\nBefore JORDAN, GRANT, and HULL, Circuit Judges.\nGRANT, Circuit Judge:\n\n A trio of healthcare providers brought a class action against an insurance\ncompany over a claims-handling process that they argue is illegal under Florida\nlaw. The district court certified an injunction class under Federal Rule of Civil\n\nProcedure 23(b)(2), but it refused to certify a damages class under Rule 23(b)(3).\n\n Case: 17-13003 Date Filed: 09/12/2019 Page: 2 of 21\n\n\n\nOn interlocutory appeal, the question is whether the injunction class should have\nbeen certified.\n\n We have no occasion today to disapprove—or approve—of complaints or\nclasses that are not before us. In this interlocutory appeal, we consider only\nwhether the class as certified, proceeding on the complaint as alleged, is viable.\nAnd because what this “injunction” class really wants is damages—and more\nprecisely, because the injunctive remedy that this class seeks would be improper—\nthe answer to that question is no.\n\n I.\n Under Florida law, car insurance policies must provide personal injury\nprotection (PIP) benefits up to $10,000. Fla. Stat. § 627.736(1). But under a 2012\namendment to that law, not every injured motorist will be eligible to access all\n$10,000 in benefits. See 2012 Fla. Laws Ch. 2012–197 § 10. If a person has an\n“emergency medical condition” (EMC), 1 he is eligible for all $10,000 in benefits.\n\nFla. Stat. § 627.736(1)(a)(3). If not, his coverage is capped at $2,500. Id.\n§ 627.736(1)(a)(4). And we have held that in cases where no EMC determination\nis made one way or the other, the default is the $2,500 cap. Robbins v. Garrison\n\nProp. & Cas. Ins. Co., 809 F.3d 583, 588 (11th Cir. 2015).\n This case is a dispute about who is allowed to make the negative EMC\ndetermination. The plaintiffs—two chiropractic providers and a medical provider\n\n1\n Florida law defines an “Emergency medical condition” as “a medical condition manifesting\nitself by acute symptoms of sufficient severity, which may include severe pain, such that the\nabsence of immediate medical attention could reasonably be expected to result in any of the\nfollowing: (a) Serious jeopardy to patient health. (b) Serious impairment to bodily functions.\n(c) Serious dysfunction of any bodily organ or part.” Fla. Stat. § 627.732(16).\n 2\n\n Case: 17-13003 Date Filed: 09/12/2019 Page: 3 of 21\n\n\n\nthat treated injured motorists insured by Progressive who thereafter assigned their\ninsurance benefits to the providers (collectively, “Suncoast”)—allege that the\n\ndefendants—the Progressive Corporation and two of its insurance underwriters,\nProgressive American Insurance Company and Progressive Select Insurance\nCompany (collectively, “Progressive”)—have denied PIP insurance benefits in an\nillegal manner. Specifically, Suncoast alleges that Progressive relied on negative\nEMC determinations from non-treating healthcare providers to limit coverage to\n$2,500, and that Florida law allows only treating providers to make negative EMC\n\ndeterminations.\n Suncoast sued Progressive in Florida state court and sought class-action\nstatus. Progressive removed the case to federal court under the Class Action\nFairness Act, which grants federal jurisdiction over certain class actions where the\namount in controversy exceeds $5 million and there is minimal diversity. In its\nsecond amended complaint, Suncoast asserted two counts: one for declaratory and\ninjunctive relief and another for damages based on breach of contract. The\nrequested declaration would 1) declare unlawful Progressive’s policy provision\npurporting to allow reductions in coverage based on negative EMC determinations\nby non-treating physicians, 2) declare unlawful Progressive’s practice of relying on\nsuch determinations, and 3) find that Progressive is not permitted to disregard an\naffirmative EMC determination. The requested injunction would 1) restore\ncoverage limits to $10,000 for affected policies, 2) enjoin Progressive from\nincluding policy provisions that the declaration found unlawful, 3) notify affected\npolicyholders and providers, and 4) award costs and attorneys’ fees. The breach-\n\n 3\n\n Case: 17-13003 Date Filed: 09/12/2019 Page: 4 of 21\n\n\n\nof-contract claim sought damages for underpaid benefits along with interest, costs,\nand attorneys’ fees.\n\n Suncoast moved to certify two classes: an injunction class under Federal\nRule of Civil Procedure 23(b)(2) for count one, and a damages subclass under Rule\n23(b)(3) for count two. The proposed injunction class was defined to include:\n\n A. All Qualified Providers who: (i) received an assignment of benefits from\n a Claimant under a Progressive PIP policy, (ii) provided initial or follow up\n medical services to a Claimant after January 1, 2013, and (iii) were given\n notice by Progressive that available PIP benefits were reduced to $2,500\n because of a Negative EMC Determination that Progressive obtained from a\n Non-treating Provider; and\n\n B. All Claimants who were notified that Progressive reduced available PIP\n benefits to $2,500 because of a Negative EMC Determination Progressive\n obtained from a Non-treating Provider.\n\nThe damages subclass was defined to include:\n\n All Qualified Provider Class Members: (i) who were not paid in full for their\n services, (ii) who made a pre-suit demand to Progressive for payment\n pursuant to § 627.736(10), and (iii) where Progressive received\n documentation from a duly licensed physician, dentist, physician’s assistant\n or advanced registered nurse practitioner that the Claimant had an\n Emergency Medical Condition.\n\nThe district court refused to certify the damages subclass—which, under Rule\n23(b)(3), would require the court to find predominance and superiority—because\n\ndoing so would necessitate individualized assessments and case management. But\nit certified the injunction class, in part because Suncoast “assured” it that “once the\n\n\n\n\n 4\n\n Case: 17-13003 Date Filed: 09/12/2019 Page: 5 of 21\n\n\n\nlegal issue is determined, there will be no more supervision required to determine\nindividual damages.”\n\n Progressive sought permission for an interlocutory appeal of the injunction\nclass certification. See Fed. R. Civ. P. 23(f) (“A court of appeals may permit an\nappeal from an order granting or denying class-action certification under this rule\n. . . .”). A panel of this Court granted that request. The only issue on interlocutory\nappeal is whether the injunction class should have been certified—Suncoast has\nnot appealed the denial of certification of the damages subclass, and the merits are\n\nnot yet at issue.\n II.\n We review a class certification decision for abuse of discretion. Brown v.\nElectrolux Home Prods., Inc., 817 F.3d 1225, 1233 (11th Cir. 2016). “But abuse\nof discretion is a continuum, and in the context of class actions, review for abuse of\ndiscretion often does not differ greatly from review for error.” Id. (internal\nquotation marks and citations omitted). In conducting this analysis, we review the\ndistrict court’s factual determinations for clear error and its legal determinations de\nnovo. Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1264–65 (11th Cir. 2009). The\nparty seeking class certification bears the burden to establish its propriety. Id. at\n1265.\n III.\n A.\n Rule 23 of the Federal Rules of Civil Procedure lays down the ground rules\nfor certifying a class action. To win certification under Rule 23, every class must\n\n 5\n\n Case: 17-13003 Date Filed: 09/12/2019 Page: 6 of 21\n\n\n\npresent a named plaintiff who has standing to bring the claim. See Prado-Steiman\nex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000). Every class must be\n\n“adequately defined and clearly ascertainable.” Little v. T-Mobile USA, Inc., 691\nF.3d 1302, 1304 (11th Cir. 2012) (citation omitted). And every class must satisfy\nthe four requirements of Rule 23(a): numerosity, commonality, typicality, and\nadequacy of representation. Id.\n From there, the rules differ depending on what type of class the plaintiff\npurports to represent. For an injunction class under Rule 23(b)(2), the plaintiff\n\nmust show that “the party opposing the class has acted or refused to act on grounds\nthat apply generally to the class, so that final injunctive relief or corresponding\ndeclaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P.\n23(b)(2). For a damages class under Rule 23(b)(3), the plaintiff must show that\n“questions of law or fact common to class members predominate over any\nquestions affecting only individual members, and that a class action is superior to\nother available methods for fairly and efficiently adjudicating the controversy.”\nFed. R. Civ. P. 23(b)(3). Because these rules establish different threshold\ncertification requirements and different procedural safeguards—protective of both\ndefendants and absent class members—it is important that courts insist on the\nproper treatment of different types of classes. Injunction classes can go forward\nunder Rule 23(b)(2); damages classes must satisfy Rule 23(b)(3). See Wal-Mart\nStores, Inc. v. Dukes, 564 U.S. 338, 361–63 (2011).2\n\n2\n Before Wal-Mart, we allowed plaintiffs to seek monetary relief through a Rule 23(b)(2)\ninjunction class if the monetary relief was “incidental” to injunctive relief—that is, if it would\n\n\n 6\n\n Case: 17-13003 Date Filed: 09/12/2019 Page: 7 of 21\n\n\n\n B.\n The district court already concluded that a subclass of this class cannot\n\nproceed to seek damages under Rule 23(b)(3) because individualized assessments\npreclude certification of a damages class under that subsection. 3 This is because,\neven if Suncoast is right on the merits about who may issue negative EMC\n\ndeterminations under Florida law, each and every member of the damages subclass\nwould have to jump through a series of hoops to establish an individualized\nentitlement to damages in the district court. Analyzing those individualized issues\nunder the Rule 23(b)(3) standard, the district court has already held that if\nmonetary relief is on the table, class certification is off of it.\n Instead of appealing that decision and fighting this case on the Rule 23(b)(3)\n\ndamages battleground—with its predominance and superiority requirements—\nSuncoast seeks to avoid these problems by styling its claim for relief as injunctive\nonly. Suncoast assures us that it is not seeking any damages award at all (at least\nnot as a class). Instead, it simply wants a declaration that Progressive’s practice of\nrelying on non-treating physicians is unlawful, along with an injunction.\n The problem with this argument is that the injunction that Suncoast has\nrequested is not an injunction at all, and its declaratory request is both minimal and\n\nflow “automatically” to class members without “complex individualized determinations.”\nMurray v. Auslander, 244 F.3d 807, 812 (11th Cir. 2001) (internal quotation marks and citation\nomitted). In Wal-Mart, the Supreme Court appeared to lower the gate on that pathway to\ncertification but did not fully slam it shut. See 564 U.S. at 365–66. We need not go down this\nroad, however, because, as this opinion describes, the plaintiffs’ damages claims would not be\n“incidental” to injunctive relief.\n3\n Only the providers were included in the proposed damages subclass because the individual\nclaimants have already assigned their claims to the providers.\n 7\n\n Case: 17-13003 Date Filed: 09/12/2019 Page: 8 of 21\n\n\n\nunconnected to the members of its class. Suncoast’s requested relief is not\ndesigned to address the treatment of future claims; it would instead, according to\n\nSuncoast itself, “restore claimants to the claims-handling process free of the\nimproper cap on PIP benefits imposed by Progressive.” In other words, the\ninjunction would mandate that Progressive reprocess all claims previously capped\nat $2,500 based on an outside EMC determination. That is how Suncoast frames\nits injury—not as the loss of money, but as the loss of an opportunity to have\nreceived money in the past for a claim that was denied. In Suncoast’s own words:\n\n“Class members have been injured because Progressive’s unlawful practice—use\nof a negative EMC determination by a non-treating provider—denied them the\nopportunity, guaranteed by a Florida statutes [sic], to seek PIP benefits exceeding\n$2,500.” This strategy of converting its claim for damages into a claim for\ninjunctive relief sidesteps the Rule 23(b)(3) problems by shaving away all the\nissues that would require individualized determinations. But what the damages-to-\ninjunction strategy cannot manage to do is request relief that would prevent future\ninjury rather than redress past harms.\n C.\n In the real world, there are likely people with a future interest in having\nProgressive manage its EMC determinations in a particular way. There may even\nbe people who are currently forgoing treatment for a past injury because their\nbenefits have been exhausted under Progressive’s current EMC approach. But the\nproblem for Suncoast is that those are not the claims that it has pleaded.\nSuncoast’s attempt to excise all the damages-based problems with certification\n\n 8\n\n Case: 17-13003 Date Filed: 09/12/2019 Page: 9 of 21\n\n\n\nthus runs into a fundamental issue: its creative conception of injunctive relief is not\na viable theory of recovery under Rule 23(b)(2). 4 As we have said, an injunction\n\nmust be geared toward preventing future harm. See, e.g., Houston v. Marod\nSupermarkets, Inc., 733 F.3d 1323, 1328–29 (11th Cir. 2013). Suncoast hammers\naway at the fact that it no longer seeks classwide monetary damages, but no\n\namount of hammering can make its square peg fit into Rule 23(b)(2)’s round hole.\nEverything about Suncoast’s claim—from its theory of standing to its request for\nrelief to its class definition—looks back at past harms.\n First, consider Suncoast’s theory of standing in this case. Because not every\nclass member would ultimately be entitled to any monetary award, Suncoast\nframes its injury as a lost opportunity to have a fair shake in the claims-handling\n\nprocess. But Suncoast’s own descriptions make clear that this purported injury is\nentirely retrospective. Suncoast argues, for example, that “Progressive’s unlawful\npractice denied each Class member a fair opportunity” to prove an entitlement to\nbenefits over $2,500. Appellee Br. at 23 (emphasis added). Again: “This\nunlawful cessation of claims-handling was an injury-in-fact sufficient to confer\nArticle III standing on each Class member.” Id. (emphasis added). And again:\n“Class members have been injured because Progressive’s unlawful practice—use\nof a negative EMC determination by a non-treating provider—denied them the\nopportunity, guaranteed by a Florida statutes [sic], to seek PIP benefits exceeding\n$2,500.” Id. at 25 (emphases added). In plain English, Suncoast argues that\n\n4\n This analysis requires some engagement with the merits of the plaintiffs’ injunctive-relief\nclaim. That “cannot be helped” and is frequently necessary in Rule 23 analyses. Wal-Mart, 564\nU.S. at 350–52.\n 9\n\n Case: 17-13003 Date Filed: 09/12/2019 Page: 10 of 21\n\n\n\nProgressive short-circuited its review of past insurance claims when it denied them\nbased on an outside EMC determination, and that this (past) short-circuiting is a\n\nharm of its own—regardless of whether any individual claim could have been\ndenied for other reasons. It now categorizes its desire to have those claims\nreprocessed as a future interest.\n Simply put, the denial of insurance coverage in this case—whether framed\nas lost money, or as a lost opportunity to get money—is a retrospective harm.\nSuncoast counters that “Progressive continues to refuse to provide further claims-\n\nhandling based on its unlawful EMC practices, so Plaintiffs plainly have a forward-\nlooking interest in an injunction requiring Progressive to resume claims handling.”\nId. at 48 n.19. What Suncoast is not saying in that statement is that it has an\ninterest in the proper handling of future claims. Instead, it has an ongoing interest\nin getting paid for past claims that have been rejected. But a “forward-looking\ninterest” in redressing a past harm—the failure to pay all benefits allegedly owed\nfor past claims that were already denied—is not the same thing as a future injury.\nAnd without any threat of future injury, injunctive relief is unavailable.\n Second, Suncoast’s request for relief further betrays the retrospective nature\nof its injury. Suncoast seeks a declaration stating that Progressive’s practices are\nunlawful and asks the court to “[r]einstat[e] the full amount of PIP coverage, in the\namount of $10,000, which should have been available under the affected policies.”\nIn its brief, Suncoast describes this relief as “requiring Progressive to resume\nhandling the Class members’ PIP claims in accordance with Florida law.” To\nbegin, those two requests could be interpreted to describe different forms of relief.\n\n 10\n\n Case: 17-13003 Date Filed: 09/12/2019 Page: 11 of 21\n\n\n\nBut the only outcome that any conception of this intermediary relief could ever\nlead to—even in the best-case scenario for any particular claimant—would be full\n\npayment of coverage benefits that have already been denied, for claims that were\nalready processed, for injuries that were already suffered. The requested relief,\nagain, looks backward to an injury already suffered.\n True enough, Suncoast’s complaint also asked the district court to enjoin\nProgressive “from including provisions in their policies which purport to allow the\nabove, illegal conduct.” But that aside in its complaint cannot save this particular\n\nclass for two reasons. As an initial matter, justifying a class that is all about\ndamages with a de minimis request for injunctive relief is like trying to prop up a\ntower with a toothpick. See Robinson v. Metro-North Commuter R.R. Co., 267\nF.3d 147, 164 (2d Cir. 2001) (“Insignificant or sham requests for injunctive relief\nshould not provide cover for (b)(2) certification of claims that are brought\nessentially for monetary recovery.”).5 That same restriction stands in cases (like\n\nthis one) where the plaintiff has ostensibly disavowed any claim for damages, but\nwhere the nature of the claim says otherwise. That is not to say that a properly\n\n\n5\n The Second Circuit’s statement in Robinson was an elaboration of its “predominance” test,\nunder which it would allow a Rule 23(b)(2) class to seek monetary relief so long as injunctive or\ndeclaratory relief “predominates.” 267 F.3d at 162–64. We have imposed an even stricter bar,\nstating that “[m]onetary relief predominates in (b)(2) class actions unless it is incidental to\nrequested injunctive or declaratory relief.” Murray, 244 F.3d at 812 (citation omitted). In Wal-\nMart, the Supreme Court expressly rejected the “predominance” test, and questioned (but did not\nultimately rule on) the “incidental” test. 564 U.S. at 363–67. We need not—indeed, cannot—\nreconsider the “incidental” test in light of Wal-Mart. See, e.g., United States v. Kaley, 579 F.3d\n1246, 1255 (11th Cir. 2009) (noting that a Supreme Court case must “actually abrogate or\ndirectly conflict with, as opposed to merely weaken, the holding of the prior panel” to overcome\nprior panel precedent rule). For present purposes, the point is that Suncoast’s claim would fail\neven under the more-generous Robinson test.\n 11\n\n Case: 17-13003 Date Filed: 09/12/2019 Page: 12 of 21\n\n\n\ndesigned class seeking only this declaratory relief could not survive, but that is not\nthe case that Suncoast has brought us.\n\n Third, then, even if Suncoast’s claim for injunctive and declaratory relief\nwere more than a fig leaf attempting to cover its demand for past relief, it would\nrun headlong into another problem: Suncoast’s class definition itself reveals that\nSuncoast is seeking retrospective relief. The proposed injunction class includes:\n\n A. All Qualified Providers who: (i) received an assignment of benefits from\n a Claimant under a Progressive PIP policy, (ii) provided initial or follow up\n medical services to a Claimant after January 1, 2013, and (iii) were given\n notice by Progressive that available PIP benefits were reduced to $2,500\n because of a Negative EMC Determination that Progressive obtained from a\n Non-treating Provider; and\n\n B. All Claimants who were notified that Progressive reduced available PIP\n benefits to $2,500 because of a Negative EMC Determination Progressive\n obtained from a Non-treating Provider.\n\nNothing in that definition envisions future harm. For a claimant, any future injury\nhinges on “the possibility that he may someday be in another car accident; sustain\nan injury entitling him to PIP benefits; and still be insured by [Progressive] under\nthe same or a similar policy being interpreted the same way, thereby having this\nissue present itself again.” A&M Gerber Chiropractic LLC v. GEICO Gen. Ins.\n\nCo., 925 F.3d 1205, 1215 (11th Cir. 2019). The chance that lightning might strike\ntwice is not enough to justify injunctive relief.\n As for providers, Suncoast does allege that it and others like it “continue to\n\ntreat Progressive insureds, and have a reasonable expectation that the dispute, and\nattendant harms, regarding Progressive’s EMC Paper Review process will be\n\n 12\n\n Case: 17-13003 Date Filed: 09/12/2019 Page: 13 of 21\n\n\n\nongoing into the future.” 6 While a class may exist that would match this\nallegation, the class as defined here does not—it is both fatally overinclusive and\n\nunderinclusive on that score. It is overinclusive because it fails to limit\nmembership to providers who are likely to see more Progressive insureds, and\ntherefore likely to run into this problem again. Indeed, Progressive asserts that two\nof the named plaintiffs, Suncoast itself and Tampa Bay Spine, “no longer treat PIP\ninsureds.” Suncoast responds that “Progressive cites nothing to support this\nassertion.” Fair enough—but whether or not Suncoast and Tampa Bay Spine\n\ncontinue to treat PIP-insured patients, the point is that the class definition would\nsweep in them (and others like them). Cf. Wal-Mart, 564 U.S. at 365 (“[E]ven\nthough the validity of a (b)(2) class depends on whether ‘final injunctive relief or\ncorresponding declaratory relief is appropriate respecting the class as a whole,’\nRule 23(b)(2) (emphasis added), about half the members of the class approved by\nthe Ninth Circuit have no claim for injunctive or declaratory relief at all.”).\n The class is also underinclusive because it fails to account for providers who\nhave not yet faced denied claims on the allegedly wrongful basis but expect to do\nso in the future—it only applies to those providers already injured when past\nclaims were denied. All of this presents more evidence that the relief sought in this\n\n\n6\n We note that Gerber’s standing analysis relied in part on its conclusion that the provider’s\ninjuries, as an assignee of rights from an insured, were limited to the injuries that the insured had\nsuffered—such that any injury the provider suffered in its own right was “beside the point.” 925\nF.3d at 1215. We understand that analysis as dependent on the unique context of that case, in\nwhich the provider had “specifically tailored its complaint to avoid alleging future injury (as it\ndid with the money damages).” Id. But where (as here) a provider has not disclaimed its own\ninjuries, it does not lose any independent interests it may have simply by picking up additional\nrights from an assignor.\n 13\n\n Case: 17-13003 Date Filed: 09/12/2019 Page: 14 of 21\n\n\n\ncase is retrospective, not prospective. Cf. Bolin v. Sears, Roebuck & Co., 231 F.3d\n970, 978 (5th Cir. 2000) (“These plaintiffs have nothing to gain from an injunction,\n\nand the declaratory relief they seek serves only to facilitate the award of damages.\nThus, the definition of the class shows that most of the plaintiffs are seeking only\ndamages.” (footnote omitted)). “What follows from this,” as in Wal-Mart, “is not\nthat some arbitrary limitation on class membership should be imposed,” but rather\nthat Suncoast’s claim for retrospective relief “should not be certified under Rule\n23(b)(2) at all.” Wal-Mart, 564 U.S. at 365. Simply put, this class is not suitably\n\ncrafted for prospective relief.\n To be clear: when we say that this class is not suitably crafted for\nprospective relief, we make no statement about whether other classes may pass\nmuster. As Suncoast alleges, for example, some providers (though perhaps not the\nones here, see supra at 13) may reasonably expect to see injured claimants on an\nongoing basis, and therefore may be able to demonstrate the sort of future harm\nthat injunctive relief requires. Similarly, some claimants may face a real prospect\nof future harm if they have exhausted their benefits up to $2,500 and are forgoing\nadditional—that is to say, future—treatment because their insurer has indicated it\nwill not be covered. But for all the reasons we have discussed—Suncoast’s theory\nof standing (predicated on a lost opportunity), its claim for relief (seeking\nreprocessing of past claims), and its class definition (both over- and\nunderinclusive)—this is not that case.\n In the end, the retrospective nature of Suncoast’s class and claim make clear\nthat an injunction is not the right remedy in this case—indeed, it is not really the\n\n 14\n\n Case: 17-13003 Date Filed: 09/12/2019 Page: 15 of 21\n\n\n\nremedy that Suncoast’s class is seeking. And because an injunction is not the right\nremedy, Rule 23(b)(2) is not the right path to class certification: “the policies\n\nunderlying the requirements of (b)(3) should not be subverted by recasting and\nbifurcating every class suit for damage as one for final declaratory relief of liability\nunder (b)(2), followed by a class suit for damages under (b)(3).” Holmes v.\nContinental Can Co., 706 F.2d 1144, 1158 n.10 (11th Cir. 1983) (internal\nquotation marks and citation omitted); see also 7AA Charles Alan Wright &\nArthur R. Miller, Federal Practice and Procedure § 1784.1 (3d ed. 2005) (“If\n\ninjunctive relief does not appear suitable or serious, Rule 23(b)(2) certification will\nbe denied.”). “In short, the plaintiffs are not really interested in final prospective\nequitable relief at all; they are singularly focused on recovering a retrospective\ndamages remedy, and Rule 23(b)(3), not (b)(2), governs certification of a damages\nclass.” Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 895 (7th Cir.\n2011).\n D.\n Suncoast’s request for declaratory relief does not save the class. For one\nthing, like an injunction, declaratory relief requires a likelihood of future harm.\nMalowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1346–47 (11th Cir.\n1999); see also Gerber, 925 F.3d at 1211 (“Accordingly, if a plaintiff does not\nassert a reasonable expectation of future injury, he lacks standing to bring an action\nfor declaratory relief.” (internal quotation marks, alterations, and citation omitted)).\nAnd as both we and the Supreme Court have made clear, this future interest must\nbe alleged by the plaintiff rather than imagined by the court: “In order to\n\n 15\n\n Case: 17-13003 Date Filed: 09/12/2019 Page: 16 of 21\n\n\n\ndemonstrate that a case or controversy exists to meet the Article III standing\nrequirement when a plaintiff is seeking injunctive or declaratory relief, a plaintiff\n\nmust allege facts from which it appears there is a substantial likelihood that he will\nsuffer injury in the future.” Malowney, 193 F.3d at 1346–47 (citing City of Los\nAngeles v. Lyons, 461 U.S. 95, 102 (1983), and Cone Corp. v. Fla. Dep’t of\nTransp., 921 F.2d 1190, 1205 (11th Cir. 1991)).\n We will not belabor the points we have made regarding the retrospective\nnature of the class definition. But we will make the additional point that, in the\n\nclass-action context, a request for declaratory relief must “correspond[]” with\ninjunctive relief. Fed. R. Civ. P. 23(b)(2). “Declaratory relief ‘corresponds’ to\ninjunctive relief when as a practical matter it affords injunctive relief or serves as a\nbasis for later injunctive relief,” and Rule 23(b)(2) “does not extend to cases in\nwhich the appropriate final relief relates exclusively or predominantly to money\ndamages.” Fed. R. Civ. P. 23(b)(2) advisory committee’s note to 1966\namendment. It follows that “an action seeking a declaration concerning [the]\ndefendant’s conduct that appears designed simply to lay the basis for a damage\naward rather than injunctive relief would not qualify under Rule 23(b)(2).” Wright\n& Miller, supra, § 1775; see also Christ v. Beneficial Corp., 547 F.3d 1292, 1298\n& n.11 (11th Cir. 2008) (concluding that unavailability of injunctive relief renders\n(b)(2) certification improper and noting that the “mere recitation of a request for\n\n\n\n\n 16\n\n Case: 17-13003 Date Filed: 09/12/2019 Page: 17 of 21\n\n\n\ndeclaratory relief cannot transform damages claims into a Rule 23(b)(2) class\naction” (internal quotation marks and citation omitted)).7\n\n Because the declaratory relief sought here does no more than that, it does not\n“correspond” to injunctive relief as Rule 23(b)(2) requires. To be sure, some cases\nallow for the possibility that a party’s request for declaratory relief may eventually\n\nserve as a route to damages. But none of those cases disclaims the traditional\nrequirements for injunctive or declaratory relief—including the requirement that\nthe plaintiff seeks relief for a future harm. See, e.g., Fortner v. Thomas, 983 F.2d\n1024, 1031 (11th Cir. 1993) (explaining that prisoners are not barred from seeking\ndamages after their class action seeking an injunction to address ongoing prison\nconditions).\n\n * * *\n This case is about damages. Rule 23(b)(3) is the proper mechanism for\ncertifying a damages class. But because the plaintiffs’ damages claims are studded\nwith individualized issues that put Rule 23(b)(3) certification out of the question,\nthey have sought instead to lop off all the damages-based warts and recast their\nclaim as one for injunctive relief under Rule 23(b)(2). That ploy may have avoided\n\n7\n Some dicta from our decision in Gerber could be read as condoning a party’s request for\ninjunctive relief as a route to damages. See 925 F.3d at 1214 n.3. But no one should read\nGerber as watering down the traditional requirements for an injunction or a declaration in the\nRule 23 context. For one thing, the relevant discussion in Gerber dealt with Article III standing,\nnot the criteria for class certification. And at any rate, no one is arguing that injunctive relief can\nnever serve as a prelude to a claim for money damages—but in such a case, a party still must\nmeet all the traditional requirements for injunctive relief. See, e.g., Fortner v. Thomas, 983 F.2d\n1024, 1031 (11th Cir. 1993). That includes the requirement that a plaintiff seeking an injunction\nmust demonstrate a risk of future harm. And where a party is unable to meet those requirements,\ninjunctive relief is inappropriate, regardless of whether it is sought for its own sake or because it\nmight pave the way for a damages claim in subsequent litigation.\n 17\n\n Case: 17-13003 Date Filed: 09/12/2019 Page: 18 of 21\n\n\n\nRule 23(b)(3)’s strictures, but in the end it fails because an injunction is an\ninappropriate remedy for the class as certified. Cf. Nat’l Endowment for the Arts v.\n\nFinley, 524 U.S. 569, 590 (1998) (Scalia, J., concurring in the judgment) (“The\noperation was a success, but the patient died.”).\nREVERSED AND REMANDED.\n\n\n\n\n 18\n\n Case: 17-13003 Date Filed: 09/12/2019 Page: 19 of 21\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: AA Suncoast Chiropractic Clinic, P.A. v. Progressive American Insurance Company\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-09-12\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-13003 Date Filed: 09/12/2019 Page: 1 of 21\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-13003\\n ________________________\\n\\n D.C. Docket No. 8:15-cv-02543-RAL-MAP\\n\\n\\nAA SUNCOAST CHIROPRACTIC CLINIC, P.A., et al., on behalf of themselves\\nand others similarly situated,\\n\\n Plaintiffs-Appellees,\\n\\n versus\\n\\nPROGRESSIVE AMERICAN INSURANCE COMPANY, et al.,\\n\\n Defendants-Appellants.\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (September 12, 2019)\\nBefore JORDAN, GRANT, and HULL, Circuit Judges.\\nGRANT, Circuit Judge:\\n\\n A trio of healthcare providers brought a class action against an insurance\\ncompany over a claims-handling process that they argue is illegal under Florida\\nlaw. The district court certified an injunction class under Federal Rule of Civil\\n\\nProcedure 23(b)(2), but it refused to certify a damages class under Rule 23(b)(3).\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 2 of 21\\n\\n\\n\\nOn interlocutory appeal, the question is whether the injunction class should have\\nbeen certified.\\n\\n We have no occasion today to disapprove—or approve—of complaints or\\nclasses that are not before us. In this interlocutory appeal, we consider only\\nwhether the class as certified, proceeding on the complaint as alleged, is viable.\\nAnd because what this “injunction” class really wants is damages—and more\\nprecisely, because the injunctive remedy that this class seeks would be improper—\\nthe answer to that question is no.\\n\\n I.\\n Under Florida law, car insurance policies must provide personal injury\\nprotection (PIP) benefits up to $10,000. Fla. Stat. § 627.736(1). But under a 2012\\namendment to that law, not every injured motorist will be eligible to access all\\n$10,000 in benefits. See 2012 Fla. Laws Ch. 2012–197 § 10. If a person has an\\n“emergency medical condition” (EMC), 1 he is eligible for all $10,000 in benefits.\\n\\nFla. Stat. § 627.736(1)(a)(3). If not, his coverage is capped at $2,500. Id.\\n§ 627.736(1)(a)(4). And we have held that in cases where no EMC determination\\nis made one way or the other, the default is the $2,500 cap. Robbins v. Garrison\\n\\nProp. & Cas. Ins. Co., 809 F.3d 583, 588 (11th Cir. 2015).\\n This case is a dispute about who is allowed to make the negative EMC\\ndetermination. The plaintiffs—two chiropractic providers and a medical provider\\n\\n1\\n Florida law defines an “Emergency medical condition” as “a medical condition manifesting\\nitself by acute symptoms of sufficient severity, which may include severe pain, such that the\\nabsence of immediate medical attention could reasonably be expected to result in any of the\\nfollowing: (a) Serious jeopardy to patient health. (b) Serious impairment to bodily functions.\\n(c) Serious dysfunction of any bodily organ or part.” Fla. Stat. § 627.732(16).\\n 2\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 3 of 21\\n\\n\\n\\nthat treated injured motorists insured by Progressive who thereafter assigned their\\ninsurance benefits to the providers (collectively, “Suncoast”)—allege that the\\n\\ndefendants—the Progressive Corporation and two of its insurance underwriters,\\nProgressive American Insurance Company and Progressive Select Insurance\\nCompany (collectively, “Progressive”)—have denied PIP insurance benefits in an\\nillegal manner. Specifically, Suncoast alleges that Progressive relied on negative\\nEMC determinations from non-treating healthcare providers to limit coverage to\\n$2,500, and that Florida law allows only treating providers to make negative EMC\\n\\ndeterminations.\\n Suncoast sued Progressive in Florida state court and sought class-action\\nstatus. Progressive removed the case to federal court under the Class Action\\nFairness Act, which grants federal jurisdiction over certain class actions where the\\namount in controversy exceeds $5 million and there is minimal diversity. In its\\nsecond amended complaint, Suncoast asserted two counts: one for declaratory and\\ninjunctive relief and another for damages based on breach of contract. The\\nrequested declaration would 1) declare unlawful Progressive’s policy provision\\npurporting to allow reductions in coverage based on negative EMC determinations\\nby non-treating physicians, 2) declare unlawful Progressive’s practice of relying on\\nsuch determinations, and 3) find that Progressive is not permitted to disregard an\\naffirmative EMC determination. The requested injunction would 1) restore\\ncoverage limits to $10,000 for affected policies, 2) enjoin Progressive from\\nincluding policy provisions that the declaration found unlawful, 3) notify affected\\npolicyholders and providers, and 4) award costs and attorneys’ fees. The breach-\\n\\n 3\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 4 of 21\\n\\n\\n\\nof-contract claim sought damages for underpaid benefits along with interest, costs,\\nand attorneys’ fees.\\n\\n Suncoast moved to certify two classes: an injunction class under Federal\\nRule of Civil Procedure 23(b)(2) for count one, and a damages subclass under Rule\\n23(b)(3) for count two. The proposed injunction class was defined to include:\\n\\n A. All Qualified Providers who: (i) received an assignment of benefits from\\n a Claimant under a Progressive PIP policy, (ii) provided initial or follow up\\n medical services to a Claimant after January 1, 2013, and (iii) were given\\n notice by Progressive that available PIP benefits were reduced to $2,500\\n because of a Negative EMC Determination that Progressive obtained from a\\n Non-treating Provider; and\\n\\n B. All Claimants who were notified that Progressive reduced available PIP\\n benefits to $2,500 because of a Negative EMC Determination Progressive\\n obtained from a Non-treating Provider.\\n\\nThe damages subclass was defined to include:\\n\\n All Qualified Provider Class Members: (i) who were not paid in full for their\\n services, (ii) who made a pre-suit demand to Progressive for payment\\n pursuant to § 627.736(10), and (iii) where Progressive received\\n documentation from a duly licensed physician, dentist, physician’s assistant\\n or advanced registered nurse practitioner that the Claimant had an\\n Emergency Medical Condition.\\n\\nThe district court refused to certify the damages subclass—which, under Rule\\n23(b)(3), would require the court to find predominance and superiority—because\\n\\ndoing so would necessitate individualized assessments and case management. But\\nit certified the injunction class, in part because Suncoast “assured” it that “once the\\n\\n\\n\\n\\n 4\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 5 of 21\\n\\n\\n\\nlegal issue is determined, there will be no more supervision required to determine\\nindividual damages.”\\n\\n Progressive sought permission for an interlocutory appeal of the injunction\\nclass certification. See Fed. R. Civ. P. 23(f) (“A court of appeals may permit an\\nappeal from an order granting or denying class-action certification under this rule\\n. . . .”). A panel of this Court granted that request. The only issue on interlocutory\\nappeal is whether the injunction class should have been certified—Suncoast has\\nnot appealed the denial of certification of the damages subclass, and the merits are\\n\\nnot yet at issue.\\n II.\\n We review a class certification decision for abuse of discretion. Brown v.\\nElectrolux Home Prods., Inc., 817 F.3d 1225, 1233 (11th Cir. 2016). “But abuse\\nof discretion is a continuum, and in the context of class actions, review for abuse of\\ndiscretion often does not differ greatly from review for error.” Id. (internal\\nquotation marks and citations omitted). In conducting this analysis, we review the\\ndistrict court’s factual determinations for clear error and its legal determinations de\\nnovo. Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1264–65 (11th Cir. 2009). The\\nparty seeking class certification bears the burden to establish its propriety. Id. at\\n1265.\\n III.\\n A.\\n Rule 23 of the Federal Rules of Civil Procedure lays down the ground rules\\nfor certifying a class action. To win certification under Rule 23, every class must\\n\\n 5\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 6 of 21\\n\\n\\n\\npresent a named plaintiff who has standing to bring the claim. See Prado-Steiman\\nex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000). Every class must be\\n\\n“adequately defined and clearly ascertainable.” Little v. T-Mobile USA, Inc., 691\\nF.3d 1302, 1304 (11th Cir. 2012) (citation omitted). And every class must satisfy\\nthe four requirements of Rule 23(a): numerosity, commonality, typicality, and\\nadequacy of representation. Id.\\n From there, the rules differ depending on what type of class the plaintiff\\npurports to represent. For an injunction class under Rule 23(b)(2), the plaintiff\\n\\nmust show that “the party opposing the class has acted or refused to act on grounds\\nthat apply generally to the class, so that final injunctive relief or corresponding\\ndeclaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P.\\n23(b)(2). For a damages class under Rule 23(b)(3), the plaintiff must show that\\n“questions of law or fact common to class members predominate over any\\nquestions affecting only individual members, and that a class action is superior to\\nother available methods for fairly and efficiently adjudicating the controversy.”\\nFed. R. Civ. P. 23(b)(3). Because these rules establish different threshold\\ncertification requirements and different procedural safeguards—protective of both\\ndefendants and absent class members—it is important that courts insist on the\\nproper treatment of different types of classes. Injunction classes can go forward\\nunder Rule 23(b)(2); damages classes must satisfy Rule 23(b)(3). See Wal-Mart\\nStores, Inc. v. Dukes, 564 U.S. 338, 361–63 (2011).2\\n\\n2\\n Before Wal-Mart, we allowed plaintiffs to seek monetary relief through a Rule 23(b)(2)\\ninjunction class if the monetary relief was “incidental” to injunctive relief—that is, if it would\\n\\n\\n 6\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 7 of 21\\n\\n\\n\\n B.\\n The district court already concluded that a subclass of this class cannot\\n\\nproceed to seek damages under Rule 23(b)(3) because individualized assessments\\npreclude certification of a damages class under that subsection. 3 This is because,\\neven if Suncoast is right on the merits about who may issue negative EMC\\n\\ndeterminations under Florida law, each and every member of the damages subclass\\nwould have to jump through a series of hoops to establish an individualized\\nentitlement to damages in the district court. Analyzing those individualized issues\\nunder the Rule 23(b)(3) standard, the district court has already held that if\\nmonetary relief is on the table, class certification is off of it.\\n Instead of appealing that decision and fighting this case on the Rule 23(b)(3)\\n\\ndamages battleground—with its predominance and superiority requirements—\\nSuncoast seeks to avoid these problems by styling its claim for relief as injunctive\\nonly. Suncoast assures us that it is not seeking any damages award at all (at least\\nnot as a class). Instead, it simply wants a declaration that Progressive’s practice of\\nrelying on non-treating physicians is unlawful, along with an injunction.\\n The problem with this argument is that the injunction that Suncoast has\\nrequested is not an injunction at all, and its declaratory request is both minimal and\\n\\nflow “automatically” to class members without “complex individualized determinations.”\\nMurray v. Auslander, 244 F.3d 807, 812 (11th Cir. 2001) (internal quotation marks and citation\\nomitted). In Wal-Mart, the Supreme Court appeared to lower the gate on that pathway to\\ncertification but did not fully slam it shut. See 564 U.S. at 365–66. We need not go down this\\nroad, however, because, as this opinion describes, the plaintiffs’ damages claims would not be\\n“incidental” to injunctive relief.\\n3\\n Only the providers were included in the proposed damages subclass because the individual\\nclaimants have already assigned their claims to the providers.\\n 7\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 8 of 21\\n\\n\\n\\nunconnected to the members of its class. Suncoast’s requested relief is not\\ndesigned to address the treatment of future claims; it would instead, according to\\n\\nSuncoast itself, “restore claimants to the claims-handling process free of the\\nimproper cap on PIP benefits imposed by Progressive.” In other words, the\\ninjunction would mandate that Progressive reprocess all claims previously capped\\nat $2,500 based on an outside EMC determination. That is how Suncoast frames\\nits injury—not as the loss of money, but as the loss of an opportunity to have\\nreceived money in the past for a claim that was denied. In Suncoast’s own words:\\n\\n“Class members have been injured because Progressive’s unlawful practice—use\\nof a negative EMC determination by a non-treating provider—denied them the\\nopportunity, guaranteed by a Florida statutes [sic], to seek PIP benefits exceeding\\n$2,500.” This strategy of converting its claim for damages into a claim for\\ninjunctive relief sidesteps the Rule 23(b)(3) problems by shaving away all the\\nissues that would require individualized determinations. But what the damages-to-\\ninjunction strategy cannot manage to do is request relief that would prevent future\\ninjury rather than redress past harms.\\n C.\\n In the real world, there are likely people with a future interest in having\\nProgressive manage its EMC determinations in a particular way. There may even\\nbe people who are currently forgoing treatment for a past injury because their\\nbenefits have been exhausted under Progressive’s current EMC approach. But the\\nproblem for Suncoast is that those are not the claims that it has pleaded.\\nSuncoast’s attempt to excise all the damages-based problems with certification\\n\\n 8\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 9 of 21\\n\\n\\n\\nthus runs into a fundamental issue: its creative conception of injunctive relief is not\\na viable theory of recovery under Rule 23(b)(2). 4 As we have said, an injunction\\n\\nmust be geared toward preventing future harm. See, e.g., Houston v. Marod\\nSupermarkets, Inc., 733 F.3d 1323, 1328–29 (11th Cir. 2013). Suncoast hammers\\naway at the fact that it no longer seeks classwide monetary damages, but no\\n\\namount of hammering can make its square peg fit into Rule 23(b)(2)’s round hole.\\nEverything about Suncoast’s claim—from its theory of standing to its request for\\nrelief to its class definition—looks back at past harms.\\n First, consider Suncoast’s theory of standing in this case. Because not every\\nclass member would ultimately be entitled to any monetary award, Suncoast\\nframes its injury as a lost opportunity to have a fair shake in the claims-handling\\n\\nprocess. But Suncoast’s own descriptions make clear that this purported injury is\\nentirely retrospective. Suncoast argues, for example, that “Progressive’s unlawful\\npractice denied each Class member a fair opportunity” to prove an entitlement to\\nbenefits over $2,500. Appellee Br. at 23 (emphasis added). Again: “This\\nunlawful cessation of claims-handling was an injury-in-fact sufficient to confer\\nArticle III standing on each Class member.” Id. (emphasis added). And again:\\n“Class members have been injured because Progressive’s unlawful practice—use\\nof a negative EMC determination by a non-treating provider—denied them the\\nopportunity, guaranteed by a Florida statutes [sic], to seek PIP benefits exceeding\\n$2,500.” Id. at 25 (emphases added). In plain English, Suncoast argues that\\n\\n4\\n This analysis requires some engagement with the merits of the plaintiffs’ injunctive-relief\\nclaim. That “cannot be helped” and is frequently necessary in Rule 23 analyses. Wal-Mart, 564\\nU.S. at 350–52.\\n 9\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 10 of 21\\n\\n\\n\\nProgressive short-circuited its review of past insurance claims when it denied them\\nbased on an outside EMC determination, and that this (past) short-circuiting is a\\n\\nharm of its own—regardless of whether any individual claim could have been\\ndenied for other reasons. It now categorizes its desire to have those claims\\nreprocessed as a future interest.\\n Simply put, the denial of insurance coverage in this case—whether framed\\nas lost money, or as a lost opportunity to get money—is a retrospective harm.\\nSuncoast counters that “Progressive continues to refuse to provide further claims-\\n\\nhandling based on its unlawful EMC practices, so Plaintiffs plainly have a forward-\\nlooking interest in an injunction requiring Progressive to resume claims handling.”\\nId. at 48 n.19. What Suncoast is not saying in that statement is that it has an\\ninterest in the proper handling of future claims. Instead, it has an ongoing interest\\nin getting paid for past claims that have been rejected. But a “forward-looking\\ninterest” in redressing a past harm—the failure to pay all benefits allegedly owed\\nfor past claims that were already denied—is not the same thing as a future injury.\\nAnd without any threat of future injury, injunctive relief is unavailable.\\n Second, Suncoast’s request for relief further betrays the retrospective nature\\nof its injury. Suncoast seeks a declaration stating that Progressive’s practices are\\nunlawful and asks the court to “[r]einstat[e] the full amount of PIP coverage, in the\\namount of $10,000, which should have been available under the affected policies.”\\nIn its brief, Suncoast describes this relief as “requiring Progressive to resume\\nhandling the Class members’ PIP claims in accordance with Florida law.” To\\nbegin, those two requests could be interpreted to describe different forms of relief.\\n\\n 10\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 11 of 21\\n\\n\\n\\nBut the only outcome that any conception of this intermediary relief could ever\\nlead to—even in the best-case scenario for any particular claimant—would be full\\n\\npayment of coverage benefits that have already been denied, for claims that were\\nalready processed, for injuries that were already suffered. The requested relief,\\nagain, looks backward to an injury already suffered.\\n True enough, Suncoast’s complaint also asked the district court to enjoin\\nProgressive “from including provisions in their policies which purport to allow the\\nabove, illegal conduct.” But that aside in its complaint cannot save this particular\\n\\nclass for two reasons. As an initial matter, justifying a class that is all about\\ndamages with a de minimis request for injunctive relief is like trying to prop up a\\ntower with a toothpick. See Robinson v. Metro-North Commuter R.R. Co., 267\\nF.3d 147, 164 (2d Cir. 2001) (“Insignificant or sham requests for injunctive relief\\nshould not provide cover for (b)(2) certification of claims that are brought\\nessentially for monetary recovery.”).5 That same restriction stands in cases (like\\n\\nthis one) where the plaintiff has ostensibly disavowed any claim for damages, but\\nwhere the nature of the claim says otherwise. That is not to say that a properly\\n\\n\\n5\\n The Second Circuit’s statement in Robinson was an elaboration of its “predominance” test,\\nunder which it would allow a Rule 23(b)(2) class to seek monetary relief so long as injunctive or\\ndeclaratory relief “predominates.” 267 F.3d at 162–64. We have imposed an even stricter bar,\\nstating that “[m]onetary relief predominates in (b)(2) class actions unless it is incidental to\\nrequested injunctive or declaratory relief.” Murray, 244 F.3d at 812 (citation omitted). In Wal-\\nMart, the Supreme Court expressly rejected the “predominance” test, and questioned (but did not\\nultimately rule on) the “incidental” test. 564 U.S. at 363–67. We need not—indeed, cannot—\\nreconsider the “incidental” test in light of Wal-Mart. See, e.g., United States v. Kaley, 579 F.3d\\n1246, 1255 (11th Cir. 2009) (noting that a Supreme Court case must “actually abrogate or\\ndirectly conflict with, as opposed to merely weaken, the holding of the prior panel” to overcome\\nprior panel precedent rule). For present purposes, the point is that Suncoast’s claim would fail\\neven under the more-generous Robinson test.\\n 11\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 12 of 21\\n\\n\\n\\ndesigned class seeking only this declaratory relief could not survive, but that is not\\nthe case that Suncoast has brought us.\\n\\n Third, then, even if Suncoast’s claim for injunctive and declaratory relief\\nwere more than a fig leaf attempting to cover its demand for past relief, it would\\nrun headlong into another problem: Suncoast’s class definition itself reveals that\\nSuncoast is seeking retrospective relief. The proposed injunction class includes:\\n\\n A. All Qualified Providers who: (i) received an assignment of benefits from\\n a Claimant under a Progressive PIP policy, (ii) provided initial or follow up\\n medical services to a Claimant after January 1, 2013, and (iii) were given\\n notice by Progressive that available PIP benefits were reduced to $2,500\\n because of a Negative EMC Determination that Progressive obtained from a\\n Non-treating Provider; and\\n\\n B. All Claimants who were notified that Progressive reduced available PIP\\n benefits to $2,500 because of a Negative EMC Determination Progressive\\n obtained from a Non-treating Provider.\\n\\nNothing in that definition envisions future harm. For a claimant, any future injury\\nhinges on “the possibility that he may someday be in another car accident; sustain\\nan injury entitling him to PIP benefits; and still be insured by [Progressive] under\\nthe same or a similar policy being interpreted the same way, thereby having this\\nissue present itself again.” A&M Gerber Chiropractic LLC v. GEICO Gen. Ins.\\n\\nCo., 925 F.3d 1205, 1215 (11th Cir. 2019). The chance that lightning might strike\\ntwice is not enough to justify injunctive relief.\\n As for providers, Suncoast does allege that it and others like it “continue to\\n\\ntreat Progressive insureds, and have a reasonable expectation that the dispute, and\\nattendant harms, regarding Progressive’s EMC Paper Review process will be\\n\\n 12\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 13 of 21\\n\\n\\n\\nongoing into the future.” 6 While a class may exist that would match this\\nallegation, the class as defined here does not—it is both fatally overinclusive and\\n\\nunderinclusive on that score. It is overinclusive because it fails to limit\\nmembership to providers who are likely to see more Progressive insureds, and\\ntherefore likely to run into this problem again. Indeed, Progressive asserts that two\\nof the named plaintiffs, Suncoast itself and Tampa Bay Spine, “no longer treat PIP\\ninsureds.” Suncoast responds that “Progressive cites nothing to support this\\nassertion.” Fair enough—but whether or not Suncoast and Tampa Bay Spine\\n\\ncontinue to treat PIP-insured patients, the point is that the class definition would\\nsweep in them (and others like them). Cf. Wal-Mart, 564 U.S. at 365 (“[E]ven\\nthough the validity of a (b)(2) class depends on whether ‘final injunctive relief or\\ncorresponding declaratory relief is appropriate respecting the class as a whole,’\\nRule 23(b)(2) (emphasis added), about half the members of the class approved by\\nthe Ninth Circuit have no claim for injunctive or declaratory relief at all.”).\\n The class is also underinclusive because it fails to account for providers who\\nhave not yet faced denied claims on the allegedly wrongful basis but expect to do\\nso in the future—it only applies to those providers already injured when past\\nclaims were denied. All of this presents more evidence that the relief sought in this\\n\\n\\n6\\n We note that Gerber’s standing analysis relied in part on its conclusion that the provider’s\\ninjuries, as an assignee of rights from an insured, were limited to the injuries that the insured had\\nsuffered—such that any injury the provider suffered in its own right was “beside the point.” 925\\nF.3d at 1215. We understand that analysis as dependent on the unique context of that case, in\\nwhich the provider had “specifically tailored its complaint to avoid alleging future injury (as it\\ndid with the money damages).” Id. But where (as here) a provider has not disclaimed its own\\ninjuries, it does not lose any independent interests it may have simply by picking up additional\\nrights from an assignor.\\n 13\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 14 of 21\\n\\n\\n\\ncase is retrospective, not prospective. Cf. Bolin v. Sears, Roebuck & Co., 231 F.3d\\n970, 978 (5th Cir. 2000) (“These plaintiffs have nothing to gain from an injunction,\\n\\nand the declaratory relief they seek serves only to facilitate the award of damages.\\nThus, the definition of the class shows that most of the plaintiffs are seeking only\\ndamages.” (footnote omitted)). “What follows from this,” as in Wal-Mart, “is not\\nthat some arbitrary limitation on class membership should be imposed,” but rather\\nthat Suncoast’s claim for retrospective relief “should not be certified under Rule\\n23(b)(2) at all.” Wal-Mart, 564 U.S. at 365. Simply put, this class is not suitably\\n\\ncrafted for prospective relief.\\n To be clear: when we say that this class is not suitably crafted for\\nprospective relief, we make no statement about whether other classes may pass\\nmuster. As Suncoast alleges, for example, some providers (though perhaps not the\\nones here, see supra at 13) may reasonably expect to see injured claimants on an\\nongoing basis, and therefore may be able to demonstrate the sort of future harm\\nthat injunctive relief requires. Similarly, some claimants may face a real prospect\\nof future harm if they have exhausted their benefits up to $2,500 and are forgoing\\nadditional—that is to say, future—treatment because their insurer has indicated it\\nwill not be covered. But for all the reasons we have discussed—Suncoast’s theory\\nof standing (predicated on a lost opportunity), its claim for relief (seeking\\nreprocessing of past claims), and its class definition (both over- and\\nunderinclusive)—this is not that case.\\n In the end, the retrospective nature of Suncoast’s class and claim make clear\\nthat an injunction is not the right remedy in this case—indeed, it is not really the\\n\\n 14\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 15 of 21\\n\\n\\n\\nremedy that Suncoast’s class is seeking. And because an injunction is not the right\\nremedy, Rule 23(b)(2) is not the right path to class certification: “the policies\\n\\nunderlying the requirements of (b)(3) should not be subverted by recasting and\\nbifurcating every class suit for damage as one for final declaratory relief of liability\\nunder (b)(2), followed by a class suit for damages under (b)(3).” Holmes v.\\nContinental Can Co., 706 F.2d 1144, 1158 n.10 (11th Cir. 1983) (internal\\nquotation marks and citation omitted); see also 7AA Charles Alan Wright &\\nArthur R. Miller, Federal Practice and Procedure § 1784.1 (3d ed. 2005) (“If\\n\\ninjunctive relief does not appear suitable or serious, Rule 23(b)(2) certification will\\nbe denied.”). “In short, the plaintiffs are not really interested in final prospective\\nequitable relief at all; they are singularly focused on recovering a retrospective\\ndamages remedy, and Rule 23(b)(3), not (b)(2), governs certification of a damages\\nclass.” Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 895 (7th Cir.\\n2011).\\n D.\\n Suncoast’s request for declaratory relief does not save the class. For one\\nthing, like an injunction, declaratory relief requires a likelihood of future harm.\\nMalowney v. Fed. Collection Deposit Grp., 193 F.3d 1342, 1346–47 (11th Cir.\\n1999); see also Gerber, 925 F.3d at 1211 (“Accordingly, if a plaintiff does not\\nassert a reasonable expectation of future injury, he lacks standing to bring an action\\nfor declaratory relief.” (internal quotation marks, alterations, and citation omitted)).\\nAnd as both we and the Supreme Court have made clear, this future interest must\\nbe alleged by the plaintiff rather than imagined by the court: “In order to\\n\\n 15\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 16 of 21\\n\\n\\n\\ndemonstrate that a case or controversy exists to meet the Article III standing\\nrequirement when a plaintiff is seeking injunctive or declaratory relief, a plaintiff\\n\\nmust allege facts from which it appears there is a substantial likelihood that he will\\nsuffer injury in the future.” Malowney, 193 F.3d at 1346–47 (citing City of Los\\nAngeles v. Lyons, 461 U.S. 95, 102 (1983), and Cone Corp. v. Fla. Dep’t of\\nTransp., 921 F.2d 1190, 1205 (11th Cir. 1991)).\\n We will not belabor the points we have made regarding the retrospective\\nnature of the class definition. But we will make the additional point that, in the\\n\\nclass-action context, a request for declaratory relief must “correspond[]” with\\ninjunctive relief. Fed. R. Civ. P. 23(b)(2). “Declaratory relief ‘corresponds’ to\\ninjunctive relief when as a practical matter it affords injunctive relief or serves as a\\nbasis for later injunctive relief,” and Rule 23(b)(2) “does not extend to cases in\\nwhich the appropriate final relief relates exclusively or predominantly to money\\ndamages.” Fed. R. Civ. P. 23(b)(2) advisory committee’s note to 1966\\namendment. It follows that “an action seeking a declaration concerning [the]\\ndefendant’s conduct that appears designed simply to lay the basis for a damage\\naward rather than injunctive relief would not qualify under Rule 23(b)(2).” Wright\\n& Miller, supra, § 1775; see also Christ v. Beneficial Corp., 547 F.3d 1292, 1298\\n& n.11 (11th Cir. 2008) (concluding that unavailability of injunctive relief renders\\n(b)(2) certification improper and noting that the “mere recitation of a request for\\n\\n\\n\\n\\n 16\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 17 of 21\\n\\n\\n\\ndeclaratory relief cannot transform damages claims into a Rule 23(b)(2) class\\naction” (internal quotation marks and citation omitted)).7\\n\\n Because the declaratory relief sought here does no more than that, it does not\\n“correspond” to injunctive relief as Rule 23(b)(2) requires. To be sure, some cases\\nallow for the possibility that a party’s request for declaratory relief may eventually\\n\\nserve as a route to damages. But none of those cases disclaims the traditional\\nrequirements for injunctive or declaratory relief—including the requirement that\\nthe plaintiff seeks relief for a future harm. See, e.g., Fortner v. Thomas, 983 F.2d\\n1024, 1031 (11th Cir. 1993) (explaining that prisoners are not barred from seeking\\ndamages after their class action seeking an injunction to address ongoing prison\\nconditions).\\n\\n * * *\\n This case is about damages. Rule 23(b)(3) is the proper mechanism for\\ncertifying a damages class. But because the plaintiffs’ damages claims are studded\\nwith individualized issues that put Rule 23(b)(3) certification out of the question,\\nthey have sought instead to lop off all the damages-based warts and recast their\\nclaim as one for injunctive relief under Rule 23(b)(2). That ploy may have avoided\\n\\n7\\n Some dicta from our decision in Gerber could be read as condoning a party’s request for\\ninjunctive relief as a route to damages. See 925 F.3d at 1214 n.3. But no one should read\\nGerber as watering down the traditional requirements for an injunction or a declaration in the\\nRule 23 context. For one thing, the relevant discussion in Gerber dealt with Article III standing,\\nnot the criteria for class certification. And at any rate, no one is arguing that injunctive relief can\\nnever serve as a prelude to a claim for money damages—but in such a case, a party still must\\nmeet all the traditional requirements for injunctive relief. See, e.g., Fortner v. Thomas, 983 F.2d\\n1024, 1031 (11th Cir. 1993). That includes the requirement that a plaintiff seeking an injunction\\nmust demonstrate a risk of future harm. And where a party is unable to meet those requirements,\\ninjunctive relief is inappropriate, regardless of whether it is sought for its own sake or because it\\nmight pave the way for a damages claim in subsequent litigation.\\n 17\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 18 of 21\\n\\n\\n\\nRule 23(b)(3)’s strictures, but in the end it fails because an injunction is an\\ninappropriate remedy for the class as certified. Cf. Nat’l Endowment for the Arts v.\\n\\nFinley, 524 U.S. 569, 590 (1998) (Scalia, J., concurring in the judgment) (“The\\noperation was a success, but the patient died.”).\\nREVERSED AND REMANDED.\\n\\n\\n\\n\\n 18\\n\\n Case: 17-13003 Date Filed: 09/12/2019 Page: 19 of 21\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4494,"cells":{"id":{"kind":"number","value":4660754,"string":"4,660,754"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Dane Gillis"},"decision_date":{"kind":"string","value":"2019-09-13"},"docket_number":{"kind":"string","value":"16-16482"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before JILL PRYOR, ANDERSON, and HULL, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"Case: 16-16482 Date Filed: 09/13/2019 Page: 1 of 80\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 16-16482\\n ________________________\\n\\n D.C. Docket No. 6:15-cr-00226-CEM-GJK-1\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellee,\\n\\n versus\\n\\nDANE GILLIS,\\n\\n Defendant-Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (September 13, 2019)\\n\\nBefore JILL PRYOR, ANDERSON, and HULL, Circuit Judges.\\n\\nPER CURIAM:\\n\\n After a jury trial, Defendant Dane Gillis appeals his convictions for:\\n\\n(1) attempting to knowingly induce or entice a minor to engage in sexual activity,\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 2 of 80\\n\\n\\nin violation of 18 U.S.C. § 2422(b) (Count 1); (2) solicitation of another to commit\\n\\nthe crime of federal kidnapping under 18 U.S.C. § 1201(a), in violation of 18\\n\\nU.S.C. § 373 (Count 2); and (3) knowingly transmitting a communication\\n\\ncontaining a threat to kidnap, in violation of 18 U.S.C. § 875(c) (Count 3). On\\n\\nappeal, Gillis argues that (1) the government failed to present sufficient evidence to\\n\\nsupport his § 2422(b) conviction in Count 1, and (2) the district court deprived him\\n\\nof his constitutional right to present a defense by prohibiting the testimony of his\\n\\nproposed expert witnesses. Gillis also contends that his § 373 solicitation\\n\\nconviction in Count 2 must be vacated because § 1201(a) kidnapping does not\\n\\ncategorically satisfy the use-of-force element in § 373.\\n\\n After careful review of the record and the parties’ briefs, and with the\\n\\nbenefit of oral argument, we affirm in part and reverse in part. We first recount the\\n\\nevidence and procedural history in this case.\\n\\n I. TRIAL EVIDENCE\\n\\n The three charges arose from Gillis’s online communications with an\\n\\nundercover agent from September 1-16, 2015. These communications involved\\n\\ntwo separate intended victims: (1) M.O., Gillis’s coworker; and (2) the undercover\\n\\nagent’s fictional 11-year-old daughter.\\n\\n In late August 2015, Gillis posted an ad on the Orlando, Florida, “personals”\\n\\nsection of the website Craigslist under the “casual encounters” subsection. The ad\\n\\n 2\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 3 of 80\\n\\n\\nstated: “Looking for a guy or a group who [are] into extremely taboo scenes. Hi\\n\\nrisk and reward for the right sadistic Pervert.”\\n\\n On September 1, 2015, Gillis’s ad caught the attention of Special Agent\\n\\nRodney Hyre, with the Federal Bureau of Investigation’s (“FBI”) Violent Crimes\\n\\nAgainst Children Task Force. Agent Hyre was reviewing ads on Craigslist to\\n\\nidentify individuals who might be soliciting sexual activity with children. Posing\\n\\nundercover as the father of an 11-year-old girl, Agent Hyre replied to Gillis’s ad.\\n\\nAgent Hyre identified himself as a “40 yo[] dad perv with 11 yo daughter” who\\n\\nwas interested in meeting “like minding people.”\\n\\n Shortly thereafter, Gillis, who at the time was 58 years old, responded, “Tell\\n\\nme more . . . i know a 40 yo that needs to be schooled.” Gillis then sent Agent\\n\\nHyre a picture of victim M.O. and asked “Any pics?” In response, Agent Hyre\\n\\nsent Gillis a photograph of his supposed daughter (actually a childhood photograph\\n\\nof a fellow law enforcement officer), with the message “sweet for 11. don’t you\\n\\nthink.” Over the next two and a half weeks, Gillis and Agent Hyre carried on a\\n\\nconversation in which they discussed (1) a plan to kidnap and rape Gillis’s\\n\\ncoworker M.O., and (2) a plan for Gillis to meet and engage in sexual activity with\\n\\nAgent Hyre’s fictional 11-year-old daughter.\\n\\n Regarding the kidnapping plan, Gillis told Agent Hyre that he was “looking\\n\\nto snag [M.O.] and use her a[s] a sex slave.” During the course of the\\n\\n 3\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 4 of 80\\n\\n\\nconversation, Gillis sent Hyre three more pictures of M.O. and explained that M.O.\\n\\nwas his coworker, that she was “unwilling and unknowing,” and that kidnapping\\n\\nher would require “some strategic planning . . . manpower etc.”\\n\\n Gillis stated that the kidnapping would have to take place early in the\\n\\nmorning, around 4:30 a.m., because of his and M.O.’s respective work schedules.\\n\\nGillis asked Agent Hyre if he had any friends, specifically “someone with\\n\\nexperience,” that would be interested in assisting with the kidnapping plot. Gillis\\n\\nexplained that they would “[n]eed help,” “a van,” and “a place to keep [M.O.] for\\n\\nat least 24 hours,” and recommended that they “hood and[/]or blindfold her” and\\n\\nwear masks themselves. Gillis described the types of sexual acts he wanted to\\n\\nperform on M.O. and described her as “a goody 2 shoes flirt that NEEDS to be\\n\\ntaught a lesson.” Gillis told Agent Hyre that he was “open to any ‘ending’\\n\\nscenario when it [comes] to her.”\\n\\n Regarding the minor daughter, Gillis told Agent Hyre early on in the\\n\\nconversation that he would “love to meet [Agent Hyre’s] girl” and asked when he\\n\\ncould meet her. At one point during the conversation, Agent Hyre asked Gillis for\\n\\nclarification about whether Gillis was “interested in my 11 yo girl or just older,” to\\n\\nwhich Gillis responded, “Right now im only interested in your 11 yo . . . the other\\n\\nwe can talk about.” As their plans to meet progressed, Gillis asked Agent Hyre\\n\\nwhat types of sexual acts the daughter would be willing to perform. When Agent\\n\\n 4\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 5 of 80\\n\\n\\nHyre told Gillis that “[s]he will do whatever you say” and asked what Gillis would\\n\\nlike to do to the girl, Gillis told Hyre that he would like to do “a little of\\n\\neverything,” including oral sex and vaginal penetration.\\n\\n Gillis and Hyre initially planned to meet on September 10, 2015, but Gillis\\n\\nbacked out at the last minute. The following day, Agent Hyre reached out to Gillis\\n\\nagain, and they resumed discussions about both the plan to kidnap M.O. and the\\n\\nplan for Gillis to have sex with Agent Hyre’s fictional daughter. Gillis explained\\n\\nthat he backed out of the first meeting with Agent Hyre and the daughter because\\n\\nhe was “a little nervous,” having “[n]ever been with a young one” before, and was\\n\\nconcerned that Agent Hyre might be setting him up. Agent Hyre reassured Gillis\\n\\nthat he was not being set up, and they then planned a second rendezvous in which\\n\\nGillis and Agent Hyre would meet first to “show we are real” and then Agent Hyre\\n\\nwould take Gillis back to his house to meet the fictional daughter.\\n\\n As they were planning this second meeting, Gillis asked Agent Hyre seven\\n\\ntimes for more pictures of the daughter and requested that Agent Hyre dress her in\\n\\n“a short skirt no underwear” for their meeting. When Agent Hyre sent Gillis a\\n\\nsecond picture, Gillis commented: “Looks [like] she has some tasty little titties . . .\\n\\nis she still all smooth down below?” Ultimately, they arranged to meet at a Gander\\n\\nMountain parking lot in Lake Mary, Florida—about an hour’s drive from Gillis’s\\n\\nhome in Leesburg, Florida—on September 16, 2015.\\n\\n 5\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 6 of 80\\n\\n\\n On the day of this second planned meeting, Gillis drove to the Gander\\n\\nMountain parking lot in Lake Mary. Another FBI agent posed as the 11-year-old’s\\n\\nfather and waited in a tan Buick, while Agent Hyre and a third agent conducted\\n\\nsurveillance from the other side of the parking lot. Gillis flashed his headlights,\\n\\nand the agent posing as the father tapped his brake lights. After approaching\\n\\nGillis’s car and confirming his identity, the agent asked him, “Do you want to go to\\n\\nthe house?” and Gillis answered, “Sure.” The agents then arrested Gillis and\\n\\nadvised him of his constitutional rights under Miranda v. Arizona, 384 U.S. 436,\\n\\n86 S. Ct. 1602 (1966). Gillis waived his rights and agreed to talk to the agents.\\n\\n In a post-Miranda interview, Gillis admitted: (1) that he had been emailing\\n\\nwith the father of an 11-year-old girl; (2) that those conversations centered on his\\n\\nhaving sex with the daughter; and (3) that he had driven an hour from Leesburg for\\n\\nno other reason than to “have sex with the little girl.” Gillis admitted that “for\\n\\napproximately the last two years” he had “fantasized about having sex with\\n\\nchildren.” A subsequent search of Gillis’s computer revealed sexually suggestive\\n\\nphotographs of prepubescent girls and his internet search history showed that,\\n\\nsince 2011, Gillis repeatedly sought out pornographic images of preteen girls.\\n\\n Regarding the plot to kidnap M.O., Gillis first told agents during his\\n\\npost-Miranda interview that her name was Jamie Johnson and gave a detailed story\\n\\nabout how she had broken his heart. Gillis admitted he had been posting on\\n\\n 6\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 7 of 80\\n\\n\\nCraigslist for the past couple of years and had 10 to 20 conversations with people\\n\\nabout helping him to kidnap and hurt Jamie Johnson. When the agents confronted\\n\\nGillis with the victim’s true name, Gillis admitted that M.O. was the person he had\\n\\nbeen sending pictures of and “talking about kidnapping and raping and possibly\\n\\nkilling.” Gillis explained that they were coworkers but had no romantic\\n\\nrelationship. Gillis admitted that, two weeks prior, M.O. had rejected him and told\\n\\nhim she was leaving the restaurant where they worked together and going to work\\n\\nat another restaurant.\\n\\n Further investigation revealed that Gillis had been trying for months to find\\n\\nsomeone to help him kidnap and rape M.O. Between February and August 2015,\\n\\nwithout M.O.’s knowledge, Gillis engaged in sexually explicit communications\\n\\nabout kidnapping and raping M.O. and sent photographs of M.O. to numerous\\n\\nCraigslist users. Additionally, around the time he was messaging Agent Hyre in\\n\\nSeptember 2015, Gillis conducted several internet searches containing the words\\n\\n“rape” and “kidnap.”\\n\\n II. PROCEDURAL HISTORY\\n\\n In a superseding indictment, a federal grand jury charged Gillis with:\\n\\n(1) attempting to knowingly induce or entice a minor to engage in sexual activity,\\n\\nin violation of 18 U.S.C. § 2422(b) (Count 1); (2) solicitation of another to commit\\n\\nthe crime of federal kidnapping under 18 U.S.C. § 1201(a), in violation of 18\\n\\n 7\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 8 of 80\\n\\n\\nU.S.C. § 373 (Count 2); and (3) knowingly transmitting a communication\\n\\ncontaining a threat to kidnap, in violation of 18 U.S.C. § 875(c) (Count 3). Gillis\\n\\npled not guilty and the case proceeded to a jury trial.\\n\\n At trial, the government presented evidence and testimony detailing the facts\\n\\noutlined above. Gillis then presented several witnesses and testified in his own\\n\\ndefense. Generally speaking, Gillis testified that his entire online conversation\\n\\nwith Agent Hyre was merely role-playing and fantasy, and he never actually\\n\\nintended to do any of the acts he described with respect to either M.O. or the\\n\\nfictional 11-year-old. Although the district court ruled that Dr. James Herriot,\\n\\nGillis’s expert witness, could testify about internet communication generally, Gillis\\n\\nultimately chose not to call him at trial.\\n\\n The jury found Gillis guilty on all three counts. The district court sentenced\\n\\nhim to 365 months imprisonment on Count 1, 240 months on Count 2, and 60\\n\\nmonths on Count 3, all to run concurrently. 1\\n\\n III. SUFFICIENCY OF THE EVIDENCE\\n\\n On appeal, Gillis challenges the sufficiency of the evidence to support his\\n\\n§ 2422(b) conviction in Count 1 for attempting to induce or entice a minor to\\n\\nengage in sexual activity.2 Gillis argues, among other things, that: (1) his\\n\\n 1\\n Gillis does not raise any sentencing issues on appeal.\\n 2\\n We review challenges to the sufficiency of the evidence supporting a conviction de\\nnovo, viewing the evidence and making all reasonable inferences therefrom in the light most\\n 8\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 9 of 80\\n\\n\\nCraigslist advertisement itself evidenced no intent to induce a minor to engage in\\n\\nsexual activity; (2) Agent Hyre introduced the notion of sex with a minor into the\\n\\nconversation; (3) Gillis abandoned the first planned meeting with the minor,\\n\\ndemonstrating an abandonment of any intent to engage in sexual activity with the\\n\\nminor; and (4) in setting up the second meeting, Gillis only sought to meet with the\\n\\nfather of the fictional minor to “discuss the possibility of future illicit activity.”\\n\\n Section 2422(b) proscribes knowing attempts to induce or entice a minor to\\n\\nengage in sexual activity, stating:\\n\\n Whoever, using the mail or any facility or means of interstate or foreign\\n commerce, . . . knowingly persuades, induces, entices, or coerces any\\n individual who has not attained the age of 18 years, to engage in\\n prostitution or any sexual activity for which any person can be charged\\n with a criminal offense, or attempts to do so, shall be fined under this\\n title and imprisoned not less than 10 years or for life.\\n\\n18 U.S.C. § 2422(b). To prove that a defendant violated § 2422(b) by attempting\\n\\nto induce a minor to engage in sexual activity, the government must show that the\\n\\ndefendant (1) had the specific intent to induce a minor to engage in sexual activity,\\n\\nand (2) took a substantial step toward the commission of that offense. United\\n\\nStates v. Lee, 603 F.3d 904, 913-14 (11th Cir. 2010); United States v. Yost, 479\\n\\nF.3d 815, 819 (11th Cir. 2007). This Court has held that a defendant may be\\n\\n\\n\\nfavorable to the jury’s verdict. United States v. White, 663 F.3d 1207, 1213 (11th Cir. 2011).\\nWe will reverse a guilty verdict only if “no trier of fact could have found guilt beyond a\\nreasonable doubt.” Id. (quotation marks omitted).\\n 9\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 10 of 80\\n\\n\\nconvicted under § 2422(b) even if he attempted to exploit only a fictitious minor\\n\\nand communicated only with an adult intermediary. See Lee, 603 F.3d at 912-13;\\n\\nsee also United States v. Murrell, 368 F.3d 1283, 1286-87 (11th Cir. 2004).\\n\\n Ample evidence supports Gillis’s conviction on Count 1. At trial, the\\n\\nevidence showed that Gillis engaged in a two-week online conversation with a\\n\\nperson he believed to be the parent of a minor daughter, during which he discussed\\n\\nin detail plans to meet and engage in sexual activity with the daughter. Though\\n\\nGillis is correct that Agent Hyre initiated discussion of the fictional minor, Gillis’s\\n\\nresponses as the conversation progressed demonstrated his sexual interest in the\\n\\ndaughter and intent to induce the daughter, through her father, to engage in sexual\\n\\nactivity.\\n\\n Furthermore, Gillis cancelled the first meeting because he was “nervous”\\n\\nand feared he was being set up, not because he was no longer interested in\\n\\nengaging in sexual activity with the minor daughter. Indeed, Gillis’s subsequent\\n\\ncomments to Agent Hyre in planning the second meeting show he remained\\n\\ninterested in engaging in sexual activity with the daughter and anticipated doing so\\n\\nafter first meeting the father. And Gillis took a substantial step toward\\n\\nconsummating that plan when he drove nearly an hour from his home to Lake\\n\\nMary for that meeting. See Murrell, 368 F.3d at 1288 (defendant’s two-hour travel\\n\\nto meet a minor for sex was corroborative of criminal intent).\\n\\n 10\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 11 of 80\\n\\n\\n Other evidence corroborated Gillis’s intent, including (1) Gillis’s admission,\\n\\nduring his post-Miranda interview, that he traveled to the Gander Mountain\\n\\nparking lot for the purpose of engaging in sex with a minor, (2) Gillis requested\\n\\nthat the minor daughter be wearing a particular outfit without underwear, and\\n\\n(3) the wealth of prepubescent images and search terms found on Gillis’s\\n\\ncomputer. Although Gillis testified that Agent Hyre’s account of the post-Miranda\\n\\ninterview was inaccurate and that he had no sexual interest in children, the jury\\n\\nwas free to disbelieve that testimony and consider it as substantive evidence of his\\n\\nguilt. United States v. Bacon, 598 F.3d 772, 776 (11th Cir. 2010).\\n\\n For all of these reasons, we conclude that sufficient evidence supported\\n\\nGillis’s § 2242(b) conviction in Count 1.\\n\\n IV. EXPERT WITNESSES\\n\\n Even if the evidence was sufficient, Gillis alternatively contends that the\\n\\ndistrict court deprived him of his Fifth and Sixth Amendment rights to present a\\n\\ndefense on all three counts (1) by limiting the testimony of Dr. Herriot, his expert\\n\\nwitness, and (2) by prohibiting Dr. Susan Sullivan, his other expert, from testifying\\n\\nat all. In order to review this claim, we outline the pretrial proffers about the\\n\\ntestimony of these two expert witnesses and the district court’s rulings thereon.\\n\\n Prior to trial, Gillis disclosed James W. Herriot, Ph.D., a sexologist, and\\n\\nSusan Sullivan, Ph.D., a clinical psychologist, as proposed experts on sexual\\n\\n 11\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 12 of 80\\n\\n\\ncommunication and behavior on the internet and Gillis’s own psychosexual\\n\\nmakeup, respectively. In separate motions, the government moved to exclude both\\n\\nexperts’ testimony, and the district court held hearings on both motions.\\n\\nA. Daubert Hearing as to Dr. Herriot’s Testimony\\n\\n At the Daubert 3 hearing, Dr. Herriot testified that he had an undergraduate\\n\\ndegree in computer science from Stanford University and that he earned his Ph.D.\\n\\nfrom the Institute for Advanced Study of Human Sexuality (“IASHS”) in 1996 and\\n\\nhad been on the faculty at IASHS ever since. Dr. Herriot stated that he was a\\n\\nmember of the American College of Sexologists and was certified as a sexologist\\n\\nthrough that organization. Dr. Herriot explained that he wrote his Ph.D.\\n\\ndissertation on sexual communication on the internet. As part of his research,\\n\\nDr. Herriot “analyzed about 20 million keystrokes worth of communication” on\\n\\n“interactive or nearly interactive forum, like sexual material.”\\n\\n Dr. Herriot testified that since his dissertation, he had done additional\\n\\nresearch regarding sexual communications on the internet and had also “kept up\\n\\nwith the field.” Regarding this additional research, Dr. Herriot stated that he had\\n\\nconducted “about 100” interviews related to sexual communications on the\\n\\ninternet. Dr. Herriot opined that there is “much that goes on in sexual\\n\\ncommunication [on the internet] that’s not obvious at first glance,” and\\n\\n\\n 3\\n Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).\\n 12\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 13 of 80\\n\\n\\nunderstanding such communications can be counterintuitive. According to\\n\\nDr. Herriot, “[t]here’s a kind of space between what goes on in our minds and what\\n\\nwe actually do in real life,” and the internet “opens up an in-between space” where\\n\\npeople engage in fantasy role playing that involves “a combination of fact and\\n\\nfiction.” Dr. Herriot further explained that the internet creates a phenomenon\\n\\ncalled the “online disinhibition effect,” in which a person’s “identity becomes\\n\\ndecoupled from their . . . online behavior” and they behave differently online than\\n\\nthey would in the real world.\\n\\n When asked about Gillis specifically, Dr. Herriot stated that he could not\\n\\n“divine or know anything about [Gillis’s] motivation” in this case because he is not\\n\\na psychologist, but could “say . . . something about the overall context” of online\\n\\ncommunications. On cross-examination, Dr. Herriot admitted that: (1) his\\n\\ndissertation had never been published in an academic journal; (2) his study was\\n\\nbased predominantly on internet message-board postings that did not involve real-\\n\\ntime communication between users; and (3) his paper did not discuss the topic of\\n\\nrole playing on the internet. Dr. Herriot stated that he later expanded his research\\n\\nto chat rooms and instant messaging as well, but never published any of his results.\\n\\nDr. Herriot also admitted that, although he was a “professor” at IASHS, he did not\\n\\nteach any classes there, had not published any articles on human sexuality, and was\\n\\nmerely a resource for doctoral students.\\n\\n 13\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 14 of 80\\n\\n\\n Following the hearing, the district court issued a written order granting in\\n\\npart the government’s motion to exclude Dr. Herriot’s testimony. The district\\n\\ncourt noted that Gillis sought to introduce Dr. Herriot’s testimony on two separate,\\n\\nbut related, topics: (1) “how the internet works and how people are able to\\n\\ncommunicate and socialize on the internet” and (2) “the internet sub-culture for\\n\\nfantasy role-playing and sexual communications.” As to the first topic, general\\n\\ndiscussion of the internet and communication, the district court found that\\n\\nDr. Herriot was qualified to testify as an expert and that his testimony was reliable\\n\\nand relevant. The district court therefore permitted Gillis to offer Dr. Herriot’s\\n\\ntestimony on this topic.\\n\\n As to the second topic, fantasy role playing and sexual communications\\n\\nonline, the district court found that Gillis failed to disclose more than “an overview\\n\\nof the general genre of testimony that Dr. Herriot will offer and assurances that\\n\\nDr. Herriot has opinions pertinent to that category of inquiry.” The district court\\n\\nfurther found that although Dr. Herriot based his expertise on social science\\n\\nresearch and experience, he “provided little information in regards to the\\n\\ninterviews and studies he conducted,” and his studies were not randomized or peer\\n\\nreviewed and occurred nearly two decades ago. Similarly, to the extent that Dr.\\n\\nHerriot purported to rely on “academic literature,” he failed to identify those\\n\\nsources, and the district court was unable to assess their credibility. In addition,\\n\\n 14\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 15 of 80\\n\\n\\nDr. Herriot did not specify any single opinion he intended to introduce at trial, and\\n\\nthe general proposition he intended to offer—that some information people\\n\\ncommunicate anonymously over the internet is false—was within the common\\n\\nknowledge of laypersons. The district court therefore precluded Dr. Herriot from\\n\\ntestifying on the topic of fantasy role playing and sexual communications online.\\n\\nB. Later Hearing as to Dr. Sullivan’s Testimony\\n\\n Gillis represented that Dr. Sullivan had “performed a psychosexual\\n\\nevaluation” of Gillis and would testify about her opinions on Gillis’s\\n\\n“psychosexual makeup” and “sexual development.” During the hearing, defense\\n\\ncounsel provided copies of Dr. Sullivan’s expert report to the government and the\\n\\ndistrict court. However, it does not appear that the report itself was made a part of\\n\\nthe district court record. Though Dr. Sullivan apparently was available, she did not\\n\\ntestify at the hearing. Accordingly, we have few details regarding the contents of\\n\\nDr. Sullivan’s proposed testimony, other than that she would testify about Gillis’s\\n\\n“psychosexual makeup” and “sexual development.”\\n\\n At the hearing regarding Dr. Sullivan’s proposed testimony, the government\\n\\nargued that Gillis’s disclosure of Dr. Sullivan was untimely and inadequate. The\\n\\ndistrict court expressed concern that Dr. Sullivan’s proposed testimony was based\\n\\nsolely on her clinical interview with Gillis and would essentially allow Gillis to\\n\\ntestify through self-serving hearsay without his being subject to cross-examination.\\n\\n 15\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 16 of 80\\n\\n\\n Gillis responded that, in addition to interviewing him, Dr. Sullivan had also\\n\\nperformed several widely accepted psychological tests. Gillis also proffered that\\n\\nDr. Sullivan would testify, based on her evaluation, that Gillis “doesn’t have an\\n\\ninterest in prepubescent children.” The district court took the government’s\\n\\nmotion to exclude Dr. Sullivan’s testimony under advisement and allowed the\\n\\nparties to file supplemental briefing on the issue.\\n\\n On the first day of trial, the district court granted the government’s motion to\\n\\nexclude Dr. Sullivan’s testimony. The district court concluded that Dr. Sullivan\\n\\nwould simply be “relaying what [the] defendant told her,” and that the true purpose\\n\\nof her proposed testimony was to “present opinion testimony from an expert\\n\\nconcluding that the defendant did not have the requisite intent to commit the\\n\\n[enticement] offense” in Count 1 because he was not attracted to prepubescent\\n\\ngirls.\\n\\nC. Analysis\\n\\n Gillis does not argue that the district court abused its discretion in excluding\\n\\nDr. Sullivan’s testimony and part of Dr. Herriot’s testimony under the Federal\\n\\nRules of Evidence and Daubert. Rather, Gillis asserts that, even if technically\\n\\ninadmissible under the rules governing expert testimony, the experts’ testimony\\n\\nshould have been admitted because it was necessary to negate the subjective intent\\n\\nelement of all three charged offenses and to rebut the Federal Rule of Evidence\\n\\n 16\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 17 of 80\\n\\n\\n404(b) evidence of his internet search history. Gillis submits that the excluded\\n\\nexpert testimony would have placed in context his online communications and\\n\\nshown he was engaging in fantasy role play and had no intent to do these crimes.\\n\\nBy not allowing him to present that expert testimony, Gillis contends that the\\n\\ndistrict court deprived him of his constitutional right to present a defense.\\n\\n The Constitution grants criminal defendants the implicit right to present\\n\\nevidence in their favor. United States v. Hurn, 368 F.3d 1359, 1362 (11th Cir.\\n\\n2004) (citing U.S. Const. amends. V & VI). In evaluating a defendant’s claim that\\n\\nhis constitutional right to present a defense was violated, we examine (1) whether\\n\\nthe right was actually violated, and (2) if so, whether that error was harmless\\n\\nbeyond a reasonable doubt. Id. at 1362-63.\\n\\n Among other things, a defendant “must generally be permitted to introduce\\n\\nevidence directly pertaining to any of the actual elements of the charged offense,”\\n\\nas well as evidence that “could make the existence of one or more of the elements\\n\\nof the charged offense . . . more or less certain.” Id. at 1363. Notably, this general\\n\\nprinciple does not give the defendant an “unfettered right to offer testimony that is\\n\\nincompetent, privileged, or otherwise inadmissible under standard rules of\\n\\nevidence.” Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 653 (1988). But,\\n\\n“the fact that a particular rule of evidence requires the exclusion of certain\\n\\nevidence is not dispositive, as particular applications of a generally valid rule may\\n\\n 17\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 18 of 80\\n\\n\\nunconstitutionally deny a defendant his rights under the Compulsory Process or\\n\\nDue Process Clauses.” Hurn, 368 F.3d at 1363 n.2.\\n\\n Although Gillis does not challenge the district court’s exclusion of his\\n\\nexperts’ testimony under the Rules of Evidence or Daubert, whether that ruling\\n\\nwas correct is relevant to whether Gillis’s constitutional right to present a defense\\n\\nwas violated. Accordingly, we address whether the district court abused its\\n\\ndiscretion in excluding the testimony of Gillis’s experts before determining\\n\\nwhether that exclusion violated Gillis’s constitutional rights.\\n\\n Federal Rule of Evidence 702 governs the admissibility of expert testimony.\\n\\nFed. R. Evid. 702; United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004)\\n\\n(en banc). Rule 702 provides:\\n\\n A witness who is qualified as an expert by knowledge, skill, experience,\\n training, or education may testify in the form of an opinion or otherwise\\n if:\\n\\n (a) the expert’s scientific, technical, or other specialized knowledge will\\n help the trier of fact to understand the evidence or to determine a\\n fact in issue;\\n\\n (b) the testimony is based on sufficient facts or data;\\n\\n (c) the testimony is the product of reliable principles and methods; and\\n\\n (d) the expert has reliably applied the principles and methods to the facts\\n of the case.\\n\\n\\n\\n\\n 18\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 19 of 80\\n\\n\\nFed. R. Evid. 702. In determining whether to admit expert testimony under Rule\\n\\n702, district courts must consider if: (1) the expert is qualified to give competent\\n\\ntestimony about the matters he intends to address; (2) the methodology the expert\\n\\nemployed to reach his conclusions is sufficiently reliable under Daubert; and\\n\\n(3) the testimony will assist the trier of fact, through the application of scientific,\\n\\ntechnical, or other specialized expertise, to understand the evidence or determine a\\n\\nfact in issue. City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th\\n\\nCir. 1998).\\n\\n In Daubert, the Supreme Court explained that a district court faced with a\\n\\nproffer of expert testimony must assess whether the reasoning or methodology\\n\\nunderlying the testimony is scientifically valid and can properly be applied to the\\n\\nfacts in issue. Daubert, 509 U.S. at 592-93, 113 S. Ct. at 2796. Many factors may\\n\\nbear on that inquiry, including: (1) whether the theory or technique has been or can\\n\\nbe tested; (2) whether the theory or technique has been subjected to peer review\\n\\nand publication; (3) the known or potential error rate; and (4) whether the theory or\\n\\ntechnique is widely accepted. Id. at 593-94, 113 S. Ct. at 2796-97. The Supreme\\n\\nCourt emphasized that the Rule 702 inquiry is “a flexible one,” the ultimate goal of\\n\\nwhich is to determine the evidentiary relevance and reliability of the proposed\\n\\nexpert testimony. Id. at 594-95, 113 S. Ct. at 2797.\\n\\n\\n\\n 19\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 20 of 80\\n\\n\\n Even if an expert’s proposed testimony satisfies Rule 702 and Daubert, the\\n\\ntestimony must also comply with other limitations contained in the Rules of\\n\\nEvidence. Of relevance here, Rule 704(b) provides:\\n\\n In a criminal case, an expert witness must not state an opinion about\\n whether the defendant did or did not have a mental state or condition\\n that constitutes an element of the crime charged or of a defense. Those\\n matters are for the trier of fact alone.\\n\\nFed.R.Evid. 704(b). In other words, an expert may not opine on the defendant’s\\n\\nintent. See United States v. Augustin, 661 F.3d 1105, 1123 (11th Cir. 2011).\\n\\nHowever, an expert may, consistent with Rule 704(b), give testimony “that\\n\\nsupports an obvious inference with respect to the defendant’s state of mind if that\\n\\ntestimony does not actually state an opinion on [the] ultimate issue, and instead\\n\\nleaves this inference for the jury to draw.” Id. (internal quotations and alteration\\n\\nomitted).\\n\\n Here, the district court did not abuse its discretion in excluding Dr. Herriot’s\\n\\nand Dr. Sullivan’s testimony under Daubert and the evidentiary rules governing\\n\\nexpert testimony.4 As to Dr. Herriot, the district court thoroughly explained in its\\n\\n\\n 4\\n “We review for abuse of discretion the district court’s decisions regarding the\\nadmissibility of expert testimony and the reliability of an expert opinion.” Frazier, 387 F.3d at\\n1258. “Indeed, the deference that is the hallmark of abuse-of-discretion review requires that we\\nnot reverse an evidentiary decision of a district court unless the ruling is manifestly erroneous.”\\nId. (internal quotations and citation omitted). “Thus, it is by now axiomatic that a district court\\nenjoys considerable leeway in making these determinations.” Id. (internal quotations omitted).\\n“[W]e must affirm unless we find that the district court has made a clear error of judgment, or\\nhas applied the wrong legal standard.” Id. at 1259.\\n\\n 20\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 21 of 80\\n\\n\\norder why Dr. Herriot’s proposed testimony about fantasy and role playing in\\n\\nonline sexual communications did not satisfy Rule 702 and Daubert. Among other\\n\\nthings, the district court found that: (1) Dr. Herriot’s research was conducted\\n\\nnearly 20 years ago using a different online medium; (2) his studies were not\\n\\nrandomized, peer-reviewed, or published; (3) he was not able to specifically\\n\\nidentify the academic literature on which he purported to base his opinions; (4) he\\n\\ndid not demonstrate sufficient experience in the field of online sexual\\n\\ncommunications; and (5) his primary conclusion—that not all communications on\\n\\nthe internet are truthful—was within the knowledge of laypersons. Given these\\n\\ninfirmities, we have no trouble concluding the district court properly excluded\\n\\nDr. Herriot’s proposed testimony about online sexual communications. See\\n\\nFrazier, 387 F.3d at 1259; Harcros Chems., 158 F.3d at 562.\\n\\n We likewise have little trouble concluding the district court did not abuse its\\n\\ndiscretion in excluding Dr. Sullivan’s proposed testimony. See Frazier, 387 F.3d\\n\\nat 1259. The district court determined that Dr. Sullivan’s proffered opinion that\\n\\nGillis was not sexually attracted to prepubescent girls was simply a thinly veiled\\n\\nattempt by the defense to offer an expert opinion that Gillis lacked the requisite\\n\\nintent for the enticement offense in Count 1. We see no clear error in the district\\n\\ncourt’s determination that Dr. Sullivan’s proffered testimony would do more than\\n\\n“leave[ an] inference for the jury to draw,” and instead veered into the\\n\\n 21\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 22 of 80\\n\\n\\nimpermissible territory of offering an opinion on Gillis’s mental state. See\\n\\nAugustin, 661 F.3d at 1123 (internal quotation marks omitted); Fed. R. Evid.\\n\\n704(b).\\n\\n It is unsurprising, therefore, that Gillis does not contest the admissibility\\n\\naspect of the district court’s rulings. Accordingly, to show he was deprived of his\\n\\nconstitutional right to present a defense, Gillis must demonstrate a compelling\\n\\nreason for making an exception to the expert witness rules in this case to allow the\\n\\ntwo experts’ testimony. See Knight v. Dugger, 863 F.2d 705, 729 (11th Cir. 1988)\\n\\n(explaining that a conviction may be reversed based on the exclusion of evidence\\n\\nwhere there is either a clear error by the trial court in its evidentiary rulings or\\n\\n“compelling reasons for exceptions” to the rules of evidence). This he has not\\n\\ndone. Given that the district court did not err in rejecting Dr. Herriot’s and\\n\\nDr. Sullivan’s testimony, the mere fact that their testimony would have been\\n\\nhelpful to Gillis’s defense does not provide a compelling reason for admitting that\\n\\ntestimony despite its failure to satisfy Daubert and the rules of evidence.5 See id.\\n\\n 5\\n Gillis makes much of the Second Circuit’s decision in United States v. Joseph, 542 F.3d\\n13, 21 (2d Cir. 2008), abrogated in part on other grounds as recognized in United States v.\\nFerguson, 676 F.3d 260, 276 n.14 (2d Cir. 2011), in which that Court encouraged the district\\ncourt to reconsider the defendant’s request to present testimony from Dr. Herriot. However, the\\ndistrict court in that case rejected Dr. Herriot’s testimony primarily on relevancy grounds and\\nnot, as here, because it found his proposed testimony to be unreliable. Id. Furthermore, the\\nSecond Circuit stated that the reliability of testimony such as Dr. Herriot’s “depends heavily on\\nthe knowledge and experience of the expert, rather than the methodology or theory behind it.”\\nId. In this case, the district court specifically found that Gillis failed to show Dr. Herriot had\\nsufficient experience in the relevant subject matter to qualify him as an expert.\\n 22\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 23 of 80\\n\\n\\nThat is particularly so here, where Gillis chose to testify at trial and was able to\\n\\npresent his fantasy role playing argument to the jury.\\n\\n V. 18 U.S.C. § 373 CONVICTION\\n\\n Gillis challenges his Count 2 conviction for solicitation of another to commit\\n\\nthe crime of federal kidnapping under 18 U.S.C. § 1201(a), in violation of 18\\n\\nU.S.C. § 373. Section § 373 provides that:\\n\\n [w]hoever, with intent that another person engage in conduct\\n constituting a felony that has as an element the use, attempted use, or\\n threatened use of physical force against property or against the person\\n of another in violation of the laws of the United States, and under\\n circumstances strongly corroborative of that intent, solicits, commands,\\n induces, or otherwise endeavors to persuade such other person to\\n engage in such conduct, shall be imprisoned . . . .\\n\\n18 U.S.C. § 373(a) (emphasis added). To be convicted under § 373, the defendant\\n\\n(1) must solicit another person to “engage in conduct constituting a felony that has\\n\\nas an element the use, attempted use, or threatened use of physical force,” and\\n\\n(2) must solicit “such other person to engage in such conduct” under circumstances\\n\\nstrongly corroborative of that intent.6 Id.\\n\\n The actual, real-world conduct that Gillis solicited was a kidnapping by\\n\\nphysical violence, including hooding, blindfolding, and snagging the victim M.O.,\\n\\nputting her in a van, and then using her as a sex slave. The actual conduct Gillis\\n\\n\\n\\n 6\\n Although the § 373 statute is entitled “solicitation to commit a crime of violence,” the\\ntext of the statute does not use the term “crime of violence.”\\n 23\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 24 of 80\\n\\n\\nsolicited clearly “constitut[ed] a felony that ha[d] as an element the use . . . of\\n\\nphysical force” against the victim. 18 U.S.C. § 373(a). Nonetheless, Gillis\\n\\ncontends § 373’s elements text permits only the use of the categorical approach,\\n\\nwhich requires blindness to his actual conduct. Gillis argues our panel has no\\n\\nchoice in this matter because it is bound by our elements-clause precedent in\\n\\nUnited States v. McGuire, 706 F.3d 1333 (11th Cir. 2013). 7\\n\\n More specifically, Gillis contends that: (1) our McGuire precedent holds that\\n\\nthe text of the elements clause in 18 U.S.C. § 924(c) requires that we apply the\\n\\ncategorical approach; (2) the text of § 373 has an identical elements clause, which\\n\\nmeans McGuire requires the categorical approach here too; (3) the elements clause\\n\\nin § 373 modifies “felony,” not “conduct”; (4) under the categorical approach, we\\n\\nmust look to the least culpable acts by which § 1201(a) federal kidnapping can be\\n\\ncommitted; (5) the least culpable act of the § 1201(a) federal kidnapping Gillis\\n\\nsolicited is “confinement”; and (6) kidnapping by confinement can be\\n\\naccomplished without the use, attempted use, or threatened use of physical force.8\\n\\nSee Moncrieffe v. Holder, 569 U.S. 184, 190-91, 133 S. Ct. 1678, 1684 (2013).\\n\\n\\n 7\\n For discussion of McGuire’s subsequent treatment see infra note 10.\\n 8\\n Notably, the § 1201(a) statute also prohibits kidnapping by “inveiglement” or “decoy.”\\nAlthough Gillis does not argue that those are the least culpable acts for purposes of his case we\\nconsider this legal question de novo. See Splunge v. Shoney’s, Inc., 97 F.3d 488, 492 n.2 (11th\\nCir. 1996) (“Stipulations to pure questions of law are of course not binding on courts.” (citation\\nomitted)).\\n 24\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 25 of 80\\n\\n\\n The government disagrees and argues a conduct-based approach applies\\n\\nbecause: (1) the § 373 text twice refers to the “conduct” the defendant was\\n\\nsoliciting someone to engage in; (2) even though the elements clause follows\\n\\n“felony,” the § 373 text refers to “conduct constituting a felony,” not “an offense\\n\\nthat is a felony” as in § 924(c)(3)(A); (3) § 373 requires consideration of the actual\\n\\nconduct that the defendant solicited and only then asks if that conduct constitutes a\\n\\nfelony that has physical force as an element; and (4) the look-back problems of\\n\\nassessing a prior conviction that spawned the categorical approach do not apply\\n\\nhere.\\n\\n As a threshold issue, we must decide whether, under the prior panel\\n\\nprecedent rule, McGuire binds us to apply the categorical approach to the text of\\n\\n§ 373. To do that, we review McGuire in detail.\\n\\nA. Our McGuire Precedent\\n\\n The defendant in McGuire was convicted of two crimes: (1) attempting to\\n\\nset fire to, damage, destroy, disable, or wreck an aircraft, in violation of 18 U.S.C.\\n\\n§ 32(a)(1); and (2) using a firearm during and in relation to that crime of violence,\\n\\nin violation of 18 U.S.C. § 924(c)(1)(A). McGuire, 706 F.3d at 1335. The\\n\\ndefendant fired a single shot from a handgun in the general direction of an airborne\\n\\npolice helicopter. Id. McGuire did not involve a prior conviction and a look-back\\n\\nproblem. On appeal, the defendant challenged his § 924(c) firearm conviction,\\n\\n 25\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 26 of 80\\n\\n\\ncontending that his contemporaneous predicate § 32(a)(1) offense was not\\n\\ncategorically a crime of violence as defined in § 924(c)(3). Id. at 1336-37.\\n\\n The McGuire Court decided two legal questions: (1) whether the text of\\n\\n§ 924(c)(3)(A)’s elements clause required use of the categorical approach; and\\n\\n(2) if so, whether all plausible versions of a § 32(a)(1) predicate conviction\\n\\ncategorically involve the use, attempted use, or threatened use of physical force\\n\\nunder § 924(c)(3)(A) and thereby qualify as a crime of violence. See id. at 1336-\\n\\n38.\\n\\n As background, § 924(c)(3) defines a crime of violence as “an offense that is\\n\\na felony” that either: “(A) has as an element the use, attempted use, or threatened\\n\\nuse of physical force against the person or property of another” (the elements\\n\\nclause); or “(B) that by its nature, involves a substantial risk that physical force\\n\\nagainst the person or property of another may be used in the course of committing\\n\\nthe offense” (the residual clause). 9 18 U.S.C. § 924(c)(3)(A)-(B).\\n\\n As to § 924(c)(3)(A)’s elements clause, the McGuire panel held that it must\\n\\n“employ th[e] categorical approach because of the statute’s terms: It asks whether\\n\\nMcGuire committed ‘an offense’ that ‘has as an element the use, attempted use, or\\n\\n\\n\\n 9\\n Unlike the Armed Career Criminal Act (“ACCA”) and 18 U.S.C. § 924(c), the § 373\\ntext has no residual clause language. Compare 18 U.S.C. § 924(c)(3)(B) and 18 U.S.C.\\n§ 924(e)(2)(B)(ii), with 18 U.S.C. § 373(a).\\n\\n 26\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 27 of 80\\n\\n\\nthreatened use of physical force against the person or property of another.’”\\n\\nMcGuire, 706 F.3d at 1336 (first emphasis added). The McGuire panel reasoned\\n\\nthat whether a § 32(a)(1) conviction is a crime of violence within the meaning of\\n\\n§ 924(c)(3)(A)’s elements clause is “a question of law . . . that we must answer\\n\\n‘categorically’—that is, by reference to the elements of the offense, and not the\\n\\nactual facts of McGuire’s conduct.” Id.10\\n\\n In McGuire, the Court also explained that, even though McGuire’s conduct\\n\\nof “firing a gun at a flying helicopter is unmistakably violent, we must ask whether\\n\\n\\n\\n 10\\n In addition to holding that § 924(c)(3)(A)’s elements clause requires the categorical\\napproach, McGuire also indicated that § 924(c)(3)(B)’s residual clause required the categorical\\napproach. 706 F.3d at 1336–37. This court, sitting en banc, overruled McGuire to the extent that\\nit held the residual clause required the categorical approach. Ovalles v. United States, 905 F.3d\\n1231, 1234 (11th Cir. 2018) (en banc) (“[W]e hold that § 924(c)(3)(B) prescribes a conduct-\\nbased approach, pursuant to which the crime-of-violence determination should be made by\\nreference to the actual facts and circumstances underlying a defendant’s offense. To the extent\\nthat our earlier decision in United States v. McGuire holds otherwise, it is overruled.” (citation\\nomitted)). The Supreme Court, however, recently abrogated Ovalles. See United States v.\\nDavis, ___ U.S. ___, ___, 139 S. Ct. 2319, 2325-33 (2019) (holding that § 924(c)(3)(B)’s\\nresidual clause mandates the categorical approach and is unconstitutionally vague).\\n\\n This case concerns language similar to § 924(c)(3)(A)’s elements clause. McGuire’s\\ndetermination that § 924(c)(3)(A)’s elements clause requires the categorical approach was\\nunaffected by Ovalles and only reinforced by dicta in Davis. The Government conceded in\\nDavis that the categorical approach would apply to § 924(c)(3)(A)’s elements clause. See Davis,\\n___ U.S. at ___, 139 S. Ct. at 2328; id. at ___, 139 S. Ct. at 2339 (Kavanaugh, J., dissenting).\\nMoreover, the Court indicated in dicta that it agreed that the elements clause called for the\\ncategorical approach. Id. at 2328 (majority opinion) (“Consider the word ‘offense.’ It’s true that\\n‘in ordinary speech,’ this word can carry at least two possible meanings. It can refer to ‘a generic\\ncrime, say, the crime of fraud or theft in general,’ or it can refer to ‘the specific acts in which an\\noffender engaged on a specific occasion.’ . . . [E]veryone agrees that, in connection with the\\nelements clause, the term ‘offense’ carries the first ‘generic’ meaning. . . . The language of the\\nresidual clause itself reinforces the conclusion that the term ‘offense’ carries the same ‘generic’\\nmeaning throughout the statute.”).\\n 27\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 28 of 80\\n\\n\\nthe crime, in general, plausibly covers any non-violent conduct.” Id. at 1337.\\n\\nAfter concluding that all plausible applications of the statute required the use,\\n\\nattempted use, or threatened use of physical force, the Court held that the\\n\\ndefendant’s § 32(a)(1) conviction categorically qualified as a crime of violence\\n\\nunder § 924(c)(3)(A)’s elements clause. Id.\\n\\nB. Prior Panel Precedent Rule\\n\\n Under our prior panel precedent rule, we are bound to follow a prior panel’s\\n\\nholding unless and until it is overruled or undermined to the point of abrogation by\\n\\nan opinion of the Supreme Court or of this Court sitting en banc. United States v.\\n\\nArcher, 531 F.3d 1347, 1352 (11th Cir. 2008). The prior panel precedent rule\\n\\napplies regardless of whether the later panel believes the prior panel’s opinion to\\n\\nbe correct, and there is no exception to the rule where the prior panel failed to\\n\\nconsider arguments raised before a later panel. See Smith v. GTE Corp., 236 F.3d\\n\\n1292, 1301-03 (11th Cir. 2001) (“[W]e categorically reject any exception to the\\n\\nprior panel precedent rule based upon a perceived defect in the prior panel’s\\n\\nreasoning or analysis as it relates to the law in existence at that time.”). To\\n\\noverrule or abrogate a prior panel’s decision, the subsequent Supreme Court or en\\n\\nbanc decision “must be clearly on point” and must “actually abrogate or directly\\n\\nconflict with, as opposed to merely weaken, the holding of the prior panel.”\\n\\nUnited States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (internal quotation\\n\\n 28\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 29 of 80\\n\\n\\nmarks omitted).\\n\\n Here, there is no intervening Supreme Court or en banc decision to\\n\\nconsider. 11 Rather, the narrow question is whether our own McGuire panel\\n\\nprecedent binds us in this case. Our prior panel precedent rule “applies only to\\n\\nholdings, not dicta” in our prior opinions. United States v. Birge, 830 F.3d 1229,\\n\\n1232 (11th Cir. 2016). “The holding of a case comprises both the result of the case\\n\\nand those portions of the opinion necessary to that result.” United States v.\\n\\nCaraballo-Martinez, 866 F.3d 1233, 1244 (11th Cir.) (internal quotation marks\\n\\nomitted), cert. denied, 138 S. Ct. 566 (2017). But “[w]e have pointed out many\\n\\ntimes that regardless of what [our] court says in its opinion, the decision can hold\\n\\nnothing beyond the facts of that case.” Edwards v. Prime, Inc., 602 F.3d 1276,\\n\\n1298 (11th Cir. 2010) (collecting cases).\\n\\n In contrast, dicta is “a statement that neither constitutes the holding of a\\n\\ncase, nor arises from a part of the opinion that is necessary to the holding of the\\n\\ncase.” Black v. United States, 373 F.3d 1140, 1144 (11th Cir. 2004). Stated\\n\\nanother way, “dicta is defined as those portions of an opinion that are not necessary\\n\\nto deciding the case then before us.” Caraballo-Martinez, 866 F.3d at 1244\\n\\n(quoting Kaley, 579 F.3d at 1253 n.10); Obiter Dictum, Black’s Law Dictionary\\n\\n\\n\\n 11\\n As noted previously, supra note 10, McGuire’s determination with respect to the\\nelements clause was not affected by Ovalles and was only reinforced by Davis.\\n 29\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 30 of 80\\n\\n\\n(10th ed. 2014) (explaining that a statement is dictum if it is “unnecessary to the\\n\\ndecision in the case”); Bryan A. Garner, et al., The Law of Judicial Precedent 46\\n\\n(2016) (“Generally, a dictum is a statement in a judicial opinion that is unnecessary\\n\\nto the case’s resolution.”). “[W]e are not required to follow dicta contained in our\\n\\nown precedents.” McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1077 (11th\\n\\nCir. 1996).\\n\\nC. McGuire’s Binding Force in this Case\\n\\n We first conclude that McGuire’s categorical approach ruling—that the text\\n\\nof § 924(c)(3)(A)’s elements clause requires use of the categorical approach in\\n\\nanalyzing whether a felony offense qualifies as a crime of violence—was\\n\\n“necessary to [the] result,” and therefore part of the holding, in that case. See\\n\\nMcGuire, 706 F.3d at 1336-37; Caraballo-Martinez, 866 F.3d at 1244. The use of\\n\\nthe categorical approach in McGuire was not dicta because McGuire ruled that\\n\\n§ 924(c)(3)(A)’s statutory text required that it apply the categorical approach to\\n\\ndetermine whether a § 32(a)(1) conviction qualified as a crime of violence.\\n\\nMcGuire, 706 F.3d at 1336-38. At least in another § 924(c)(3)(A) case, it is clear\\n\\nthat McGuire’s use of the categorical approach is binding in evaluating the\\n\\n\\n\\n\\n 30\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 31 of 80\\n\\n\\npredicate crime. See Caraballo-Martinez, 866 F.3d at 1244; Archer, 531 F.3d at\\n\\n1352.\\n\\n The more precise and decisive question here, though, is whether McGuire’s\\n\\nholding—that § 924(c)(3)(A)’s statutory text requires a categorical approach—\\n\\nbinds us in this case, which arises under § 373. For several reasons, we conclude\\n\\nthat it does. Let’s compare the statutory text of § 924(c)(3)(A) and § 373\\n\\nside-by-side, as follows:\\n\\n § 924(c)(1)(A) & (c)(3)(A) § 373 makes it unlawful\\n makes it unlawful to use or to solicit another with the\\n carry a firearm during and intent that the other\\n in relation to a crime of person “engage in\\n violence, defined as “an conduct constituting a\\n offense that is a felony and felony that has as an\\n (A) has as an element the element the use,\\n use, attempted use, or attempted use, or\\n threatened use of physical threatened use of physical\\n force against the person or force against property or\\n property of another.” against the person of\\n another . . . , and under\\n circumstances strongly\\n corroborative of that\\n intent, solicits,\\n commands, induces, or\\n otherwise endeavors to\\n persuade such other\\n person to engage in such\\n conduct.”\\n\\n Both statutes use this same phrase: “a felony” that “has as an element the\\n\\nuse, attempted use, or threatened use of physical force.” Compare 18 U.S.C.\\n\\n\\n 31\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 32 of 80\\n\\n\\n§ 924(c)(3)(A), with 18 U.S.C. § 373(a). Section 373 was enacted as part of the\\n\\nComprehensive Crime Control Act of 1984, where the term “crime of violence”\\n\\nfinds its origins.12 Pub. L. 98-473, § 1003(a), 98 Stat. 1976, 2138 (1984). Nearly\\n\\nidentical elements clauses within § 924(c)(3)(A) and § 16’s definitions of “crime\\n\\nof violence,”13 which also find their origins in the Comprehensive Crime Control\\n\\nAct of 1984, have been interpreted to require the categorical approach. See United\\n\\nStates v. Davis, ___ U.S. ___, ___, 139 S. Ct. 2319, 2327-28 (2019) (§ 924(c));\\n\\nLeocal v. Ashcroft, 543 U.S. 1, 6, 125 S. Ct. 377, 381 (2004) (§ 16). Because “we\\n\\nnormally presume that the same language in related statutes carries a consistent\\n\\n\\n\\n\\n 12\\n The Comprehensive Crime Control Act not only added § 373 but also amended\\n§ 924(c) to add the term “crime of violence” and enacted 18 U.S.C. § 16’s definition of “crime of\\nviolence,” which contains a nearly identical elements clause. See Pub. L. 98-473, § 1003(a), 98\\nStat. 1976, 2138 (1984) (codified as amended at 18 U.S.C. § 373); id. § 1001(a), 98 Stat. at 2136\\n(codified at 18 U.S.C. § 16); id. § 1005(a), 98 Stat. at 2138 (codified as amended at 18 U.S.C.\\n§ 924(c)). Until § 924(c)’s subsequent amendment in 1986 to include a definition for crime of\\nviolence, which included its elements clause, its use of “crime of violence” in the 1984\\namendments was interpreted to refer to § 16’s general definition. See Davis, ___ U.S. at ___,\\n139 S. Ct. at 2330–31 (“The statutory term ‘crime of violence’ traces its origins to the\\nComprehensive Crime Control Act of 1984. There, Congress enacted the definition of ‘crime of\\nviolence’ in § 16. It also ‘employed the term “crime of violence” in numerous places in the Act,’\\nincluding in § 924(c). At that time, Congress didn’t provide a separate definition of ‘crime of\\nviolence’ in § 924(c) but relied on § 16’s general definition. The two statutes, thus, were\\noriginally designed to be read together.” (citations omitted)).\\n 13\\n The elements clause in § 16 provides in relevant part:\\n\\n The term “crime of violence” means –\\n\\n (a) an offense that has as an element the use, attempted use, or threatened\\n use of physical force.\\n\\n 32\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 33 of 80\\n\\n\\nmeaning,” Davis, ___ U.S. at ___, 139 S. Ct. at 2329, we construe § 373 to\\n\\nsimilarly require the categorical approach.\\n\\n While, as the government and our dissenting colleague point out, there are\\n\\nsome textual differences between § 373 and § 924(c)(3), we cannot find them\\n\\nsufficient for a panel to be able to write around our prior panel precedent in\\n\\nMcGuire, especially because both § 924(c)(3) and § 373 address contemporaneous\\n\\nconduct, not prior convictions. It is true that § 373 includes use of the word\\n\\n“conduct” whereas § 924(c)(3) does not. Compare § 373 (referencing “[w]hoever,\\n\\nwith intent that another person engage in conduct constituting a felony that has as\\n\\nan element”), with § 924(c)(3) (referring to commission of an offense that is a\\n\\nfelony and “has as an element”). However, there is little difference between\\n\\nsoliciting another to commit a felony that has as an element the use, attempted use,\\n\\nor threatened use of physical force and soliciting another to “engage in conduct\\n\\nconstituting a felony that has as an element the use, attempted use, or threatened\\n\\nuse of physical force.” The only difference is that the reference to the criminalized\\n\\nconduct in the former is implicit while the reference to conduct in the latter is\\n\\nexplicit. If Congress intended § 373 to be construed differently from § 924(c) and\\n\\n§ 16, we do not believe Congress would have used language which conveys almost\\n\\nthe same meaning as language which clearly calls for the categorical approach.\\n\\nMoreover, § 373 does not refer to just any conduct; it refers specifically to\\n\\n 33\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 34 of 80\\n\\n\\n“conduct constituting a felony that has as an element the use . . . of physical\\n\\nforce.” As noted above, established law in Davis and Leocal construe the\\n\\nlanguage—“felony that has as an element the use . . . of physical force”—as\\n\\nrequiring the categorical approach. Thus, § 373 does not refer to just any\\n\\n“conduct”; rather, it refers to “conduct” that constitutes a felony that requires a\\n\\ncategorical approach. We are not persuaded that the textual difference between\\n\\n§ 373 and § 924(c) indicates a departure from the categorical approach\\n\\ntraditionally required when considering an elements clause.\\n\\n Strong reasons based in the canons of statutory construction persuade us that\\n\\nwe cannot plausibly construe § 373 to avoid the categorical approach and permit\\n\\nconsideration only of the conduct charged in the particular case, as the dissent\\n\\nproposes. First, as noted above, the canon—presuming that language carries the\\n\\nsame meaning as does the same language in related statutes—and the fact that\\n\\n§ 373 was enacted as part of the Comprehensive Crime Control Act of 1984 along\\n\\nwith amendments to § 924(c) and the enactment of § 16—all including nearly\\n\\nidentical elements clauses—indicate that Congress intended § 373 should also be\\n\\nconstrued as requiring a categorical approach as do § 924(c) and § 16. Second, the\\n\\nphrase “that has as an element” modifies the immediately preceding word\\n\\n“felony”—not the more remote word “conduct.” See Antonin Scalia & Bryan A.\\n\\nGarner, Reading Law: The Interpretation of Legal Texts 152 (2012) (“When the\\n\\n 34\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 35 of 80\\n\\n\\nsyntax involves something other than a parallel series of nouns or verbs, a\\n\\nprepositive or postpositive modifier normally applies only to the nearest reasonable\\n\\nreferent.”). Third, the text of § 373 makes it absolutely clear that the elements\\n\\nclause—“that has as an element” —modifies the immediately preceding word\\n\\n“felony” and not the more remote word “conduct.” Conduct (i.e., underlying facts)\\n\\ncannot have constituent elements; only a felony’s legal definition can.\\n\\n “Elements” are the “constituent parts” of a crime’s legal definition—\\n the things the “prosecution must prove to sustain a conviction.” Black’s\\n Law Dictionary 634 (10th ed. 2014). At a trial, they are what the jury\\n must find beyond a reasonable doubt to convict the defendant, see\\n Richardson v. United States, 526 U.S. 813, 817, 119 S. Ct. 1707, 143\\n L.Ed.2d 985 (1999); and at a plea hearing, they are what the defendant\\n necessarily admits when he pleads guilty, see McCarthy v. United\\n States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L.Ed.2d 418 (1969). Facts,\\n by contrast, are mere real-world things—extraneous to the crime’s legal\\n requirements. (We have sometimes called them “brute facts” when\\n distinguishing them from elements. Richardson, 526 U.S., at 817, 119\\n S. Ct. 1707.) They are “circumstance[s]” or “event[s]” having no “legal\\n effect [or] consequence”: In particular, they need neither be found by a\\n jury nor admitted by a defendant. Black’s Law Dictionary 709.\\n\\nMathis v. United States, ___ U.S. ___, ___, 136 S. Ct. 2243, 2248 (2016). Thus,\\n\\nwe construe § 373’s phrase “felony that has as an element the use, attempted use,\\n\\nor threatened use of physical force” to refer categorically to the felony in question.\\n\\nThe categorical approach permits courts to look only to statutory definitions of the\\n\\ncrime. See Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct. 2143, 2160\\n\\n(1990). Of course, when the underlying crime arises from a divisible statute (a\\n\\nstatute defining multiple crimes by listing multiple, alternative elements), the\\n 35\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 36 of 80\\n\\n\\nmodified categorical approach may be applied, which permits courts to consult\\n\\nShepard 14 documents to determine which version of the underlying crime is at\\n\\nissue. See Mathis, ___ U.S. at ___, 136 S. Ct. at 2245; see also infra Section V.D.\\n\\n The dissent proposes a novel analysis. The dissent proposes, in effect, to\\n\\napply the modified categorical approach to an indivisible statute.15 Gillis is\\n\\ncharged with soliciting another to commit kidnapping under 18 U.S.C. §1201(a).\\n\\nAs we later demonstrate, see infra Section V.D., § 1201(a) is an indivisible statute,\\n\\nwhich the dissent effectively concedes. The dissent proposes to consider the actual\\n\\nconduct with which Gillis was charged, as evidenced by Shepard documents, and\\n\\nthen determine “whether that solicited ‘conduct’ constitutes a felony that has the\\n\\nuse, attempted use, or threatened use of force as an element.” The dissent’s\\n\\napproach necessarily treats the underlying felony at issue—here, § 1201(a)—as\\n\\ndivisible by looking to Shepard documents to rule out the indivisible means\\n\\n\\n\\n\\n 14\\n Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005).\\n 15\\n The dissent consults the indictment and jury instructions to rule out the indivisible\\nmeans “inveiglement” and “decoy” from its analysis. The modified categorical approach—i.e.,\\nthe use of Shepard documents like indictments and jury instructions to determine which of\\nseveral alternative elements were necessarily involved in the underlying felony—is permissible\\nonly in divisible statutes. See Mathis, ___ U.S. at ___, 136 S. Ct. at 2248-49. When the statute\\nat issue is indivisible, as is § 1201(a), Shepard documents may not be used to determine which of\\nseveral alternative means of committing the crime were involved in the underlying felony. See\\nid. at ___, 136 S. Ct. at 2253.\\n\\n 36\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 37 of 80\\n\\n\\n“inveigle” and “decoy” from consideration in step two of its analysis.16 We do not\\n\\nbelieve this approach to be consistent with Supreme Court precedent. See Mathis,\\n\\n___ U.S. at ___, 136 S. Ct. at 2253 (“‘[T]he only [use of the modified categorical\\n\\napproach] we have ever allowed,’ . . . is to determine ‘which element[s] played a\\n\\npart in the defendant’s conviction.’” (quoting Descamps v. United States, 570 U.S.\\n\\n254, 260, 263, 133 S. Ct. 2276, 2283, 2285 (2013)) (first and third alterations in\\n\\noriginal)).17\\n\\n Although there is some daylight between the § 373 and § 924(c)(3)(A) texts,\\n\\nthere is not enough for a panel of our Court to chart a new course and depart from\\n\\n\\n\\n\\n 16\\n The dissent does not ultimately decide whether it is proper to consider only Shepard\\ndocuments (e.g., the indictment and jury instructions) or the entire trial evidence. But it is clear\\nthat the dissent is considering the actual conduct of Gillis, and that is inconsistent with the\\ncategorical approach. And the dissent’s actual analysis focuses on kidnapping by unlawful\\nconfinement, which relies on the indictment, a Shepard document. That analysis assumes the\\nmodified categorical approach, which is impermissible in the context of an indivisible statute like\\n§ 1201(a).\\n 17\\n The dissent highlights that Mathis considered the ACCA, a statute that considers prior\\nconvictions rather than current conduct, and submits that this distinction supports its construction\\nof § 373. This past term in Davis, however, the Court held that the categorical approach applies\\nto § 924(c)—a statute that considers a crime currently before the court, not prior convictions.\\nLike § 924(c), § 373 also considers a crime currently before the court. We are thus not\\npersuaded by the dissent’s distinction. The dissent also asserts, with no supporting authority, that\\nthe Mathis rule—i.e, the use of Shepard documents to rely on a defendant’s actual conduct is\\npermissible only in divisible statutes—does not apply to § 373. To the extent the dissent relies\\non Mathis involving a prior conviction, the dissent’s position is undetermined by Davis. To the\\nextent that the dissent relies on § 373’s explicit reference to “conduct,” we disagree for the\\nreasons stated above—i.e., that the mere use of the term “conduct” in § 373 does not persuade us\\nthat we can depart from the categorical approach traditionally required when construing these\\nelements clauses.\\n\\n 37\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 38 of 80\\n\\n\\nMcGuire’s categorical approach when applying the elements clause in § 373. 18\\n\\nTherefore, we conclude that our McGuire precedent binds us to use the categorical\\n\\n\\n 18\\n Pursuant to the canons of statutory construction and for the reasons set out above, we\\nrespectfully do not believe that § 373 is most plausibly read as our dissenting colleague proposes.\\nThe core of the dissent’s position relies upon the fact that § 373 explicitly uses the word\\n“conduct” while § 924(c) does not. Contrary to the dissent’s suggestion with respect to the only\\ncanon on which it relies, we have not disregarded Congress’s use of the word “conduct” in\\n§ 373. Rather, we recognize that § 373 uses the word “conduct” while § 924(c) does not, but we\\ndo not believe that difference can bear the weight the dissent places on it. As set forth above,\\n§ 373 uses the word “conduct” but carries virtually the same meaning as the corresponding\\nsentences in § 924(c) and § 16, both of which clearly evoke the categorical approach. The only\\ndifference is that § 924(c) and § 16 only implicitly refer to conduct. Moreover, the reference to\\n“conduct” in § 373 specifically references only “conduct constituting a felony that has as an\\nelement the use . . . of physical force,”—i.e., “conduct” constituting a felony that requires a\\ncategorical approach. In light of the fact that §§ 373, 924(c), and 16 all include the prominent\\nand nearly identically worded elements clause that is the hallmark of the categorical approach,\\nand in light of the fact that those elements clauses all find their origins in the Comprehensive\\nCrime Control Act of 1984, we do not believe that Congress signaled the substantially different\\ninterpretation for § 373 that the dissent proposes.\\n\\n The dissent’s argument that § 373 does not include the word “conviction” or the word\\n“offense” has little force in light of the fact that § 373 does use the word “felony.” And the\\nstatute refers to a specific kind of felony—i.e., a “felony that has as an element the use . . . of\\nphysical force” (that is, a felony that requires a categorical approach.).\\n\\n Although we reject the dissent’s characterization of our focus as only on “a hypothetical\\ndefendant’s imagined conduct,” of course we do focus on “inveigle” and “decoy,” the least\\nculpable means of violating § 1201(a). This focus is required by the categorical approach. See\\ninfra Section V.D.\\n\\n Nor does the dissent’s citation to the legislative history of § 373 support its position.\\nAlthough the final version of § 373 no longer relied on the definition of “crime of violence” in\\n§ 16, it included its own requirement that the “felony” had to have “as an element,” the “use,\\nattempted use, or threatened use of physical force”—the very language which established law\\nconstrues as requiring the categorical approach.\\n\\n Under all the circumstances, we conclude that § 373 is most plausibly read as we set\\nforth, and not as our dissenting colleague proposes. However, to the extent that there is any\\nambiguity left, we believe the rule of lenity would indicate the categorical approach. The rule\\n“only applies if, after considering text, structure, history, and purpose, there remains a\\n‘grievous ambiguity or uncertainty in the statute,’ such that the Court must simply ‘guess as to\\nwhat Congress intended.’” Barber v. Thomas, 560 U.S. 474, 488, 130 S. Ct. 2499, 2508 (2010)\\n 38\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 39 of 80\\n\\n\\napproach to determine whether the solicited crime—here, § 1201(a) federal\\n\\nkidnapping—“has as an element the use, attempted use, or threatened use of\\n\\nphysical force” against another person or property, as required by § 373.\\n\\nD. Section 1201(a) Kidnapping\\n\\n In relevant part, the federal kidnapping statute provides:\\n\\n Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps,\\n abducts, or carries away and holds for ransom or reward or otherwise\\n any person, except in the case of a minor by the parent thereof . . . shall\\n be punished by imprisonment for any term of years or for life . . . .\\n\\n18 U.S.C. § 1201(a) (emphasis added). Two elements of § 1201(a) kidnapping are:\\n\\n(1) unlawfully seizing, confining, inveigling, decoying, kidnapping, abducting, or\\n\\ncarrying away the victim; and (2) holding the victim for ransom or reward or\\n\\notherwise. Id.; Chatwin v. United States, 326 U.S. 455, 459, 66 S. Ct. 233, 235\\n\\n(1946).19\\n\\n\\n\\n\\n(citations omitted). We do not believe a grievous ambiguity remains, but to the extent it does,\\nthe rule of lenity would require an interpretation favorable to Gillis—i.e., an interpretation\\ncalling for application of the categorical approach. See Leocal, 543 U.S. at 11 n.8, 125 S.Ct. at\\n384 n.8 (applying the rule of lenity in a very similar context.).\\n\\n 19\\n To be convicted of federal kidnapping, the offender’s conduct also must satisfy one of\\nthe jurisdictional elements in the statute, such as where the offender (1) willfully transports the\\nvictim in interstate or foreign commerce; (2) himself travels in interstate or foreign commerce in\\ncommitting or in furtherance of the offense; or (3) uses any means, facility, or instrumentality of\\ninterstate or foreign commerce in committing or in furtherance of the offense. 18 U.S.C.\\n§ 1201(a)(1). There is no challenge to the fact that the kidnapping conduct Gillis solicited would\\nsatisfy one of these jurisdictional elements.\\n 39\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 40 of 80\\n\\n\\n In applying the categorical approach to § 1201(a), we must first determine\\n\\nwhether the statutory phrase “unlawfully seizes, confines, inveigles, decoys,\\n\\nkidnaps, abducts, or carries away” lists divisible alternative elements defining\\n\\nseparate kidnapping crimes or is an indivisible list of factual means by which a\\n\\nsingle kidnapping crime may be committed. If these are alternative elements, then\\n\\nthe statute is divisible and the modified categorical approach, which permits\\n\\nconsulting Shepard documents, applies. See Cintron v. U.S. Att’y Gen., 882 F.3d\\n\\n1380, 1384 (11th Cir. 2018) (citing Descamps, 570 U.S. at 263, 133 S. Ct. at 2281,\\n\\n2285; Mathis v. United States, ___ U.S. ___, ___, 136 S. Ct. 2243, 2249 (2016)).\\n\\nIf these are illustrative means, then the statute is indivisible and the categorical\\n\\napproach, which does not permit consulting Shepard documents, applies. See\\n\\nMathis, ___ U.S. at ___, 136 S. Ct. at 2253-54; Descamps, 570 U.S. at 258, 133 S.\\n\\nCt. at 2282; Cintron, 882 F.3d at 1384, 1385 n.6.\\n\\n In determining whether a statutory provision lists alternative elements or\\n\\nillustrative means, we consider first the text of the statute, second relevant\\n\\ndecisional law, and third other evidence such as indictments and jury instructions.\\n\\nSee Cintron, 882 F.3d at 1385. “If these sources do not ‘speak plainly,’ courts\\n\\nmust resolve the inquiry in favor of indivisibility.” Id. Here, the text of § 1201(a)\\n\\nis strongly suggestive of indivisibility. As we explained in Cintron: “If, for\\n\\nexample, the statute provides for tiered punishments depending on particular\\n\\n 40\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 41 of 80\\n\\n\\nstatutory alternatives, the alternatives are elements. Conversely, if the statute is\\n\\n‘drafted to offer “illustrative examples,”’ those examples are means of committing\\n\\nthe offense, not elements.” Id. at 1385 (quoting and citing Mathis, ___ U.S. at ___,\\n\\n136 S. Ct. at 2256). The Supreme Court in Mathis described such a statute that\\n\\nenumerates various factual means of committing a single element:\\n\\n To use a hypothetical adapted from two of our prior decisions, suppose\\n a statute requires use of a “deadly weapon” as an element of a crime\\n and further provides that the use of a “knife, gun, bat, or similar\\n weapon” would all qualify. Because that kind of list merely specifies\\n diverse means of satisfying a single element of a single crime—or\\n otherwise said, spells out various factual ways of committing some\\n component of the offense—a jury need not find (or a defendant admit)\\n any particular item: A jury could convict even if some jurors\\n “conclude[d] that the defendant used a knife” while others “conclude[d]\\n he used a gun,” so long as all agreed that the defendant used a “deadly\\n weapon.”\\n\\nMathis, ___ U.S. at ___, 136 S. Ct. at 2249 (citing Richardson v. United States,\\n\\n526 U.S. 813, 817, 119 S. Ct. 1707, 1710 (1999); Descamps, 570 U.S. at 268-69,\\n\\n133 S. Ct. at 2288-89).\\n\\n Here, § 1201(a) specifies that whoever “unlawfully seizes, confines,\\n\\ninveigles, decoys, kidnaps, abducts, or carries away”—while also satisfying the\\n\\nother elements of the offense—“shall be punished by imprisonment for any term of\\n\\nyears or for life and, if the death of any person results, shall be punished by death\\n\\nor life imprisonment.” § 1201(a). These alternative means of establishing the first\\n\\nelement of kidnapping are “denominated as a single offense” and punished by the\\n\\n 41\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 42 of 80\\n\\n\\nsame penalty regardless of the means used. The diverse means of satisfying this\\n\\nelement include several that are nearly synonymous—inveigle and decoy, abduct\\n\\nand carry away—showing that a jury could convict even if some jurors concluded\\n\\nthat the defendant “inveigled” while others concluded that he “decoyed,” so long\\n\\nas all agreed that this first element was established. Accordingly, the text of\\n\\n§ 1201(a) suggests that the several methods of violating the statute are all factual\\n\\nmeans of accomplishing “kidnapping” rather than separate elements creating\\n\\nseveral distinct kidnapping offenses. See Cintron, 882 F.3d at 1385-86; see also\\n\\nUnited States v. St. Hubert, 909 F.3d 335, 348 (11th Cir. 2018) (determining that\\n\\n18 U.S.C. § 1951(b)(1)’s definition of “robbery” is indivisible because it sets out\\n\\nalternative means of committing the offense rather than setting out multiple\\n\\ndifferent robbery crimes), cert denied, 139 S. Ct. 1394 (2019).\\n\\n Relevant decisional law similarly suggests that § 1201(a) sets forth\\n\\nillustrative means and not alternative elements. In United States v. Boone, this\\n\\nCourt characterized inveigling or decoying “as means of kidnapping under the\\n\\nstatute,” and used the terms as interchangeable synonyms in describing\\n\\n“kidnappings accomplished solely by the seduction of victims.” See 959 F.2d\\n\\n1550, 1557 (11th Cir. 1992) (emphasis added) (internal quotation marks omitted).\\n\\nWhile we have not previously considered whether this statutory phrase describes\\n\\nmeans or elements (or, in other words, whether it is indivisible or divisible), the\\n\\n 42\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 43 of 80\\n\\n\\nonly court to consider the issue has concluded that the statute lists indivisible\\n\\nmeans. See United States v. Rubio, No. 1:08-CR-297-LJO-2, 2016 WL 6821854,\\n\\nat *8 (E.D. Cal. Nov. 17, 2016) (O’Neill, C.J.); United States v. Bustos, No. 1:08-\\n\\nCR-297-LJO-3, 2016 WL 6821853, at *8 (E.D. Cal. Nov. 17, 2016) (O’Neill,\\n\\nC.J.).\\n\\n Finally, the indictment in this case also indicates indivisibility. “[A]n\\n\\nindictment . . . could indicate, by referencing one alternative term to the exclusion\\n\\nof all others, that the statute contains a list of elements, each one of which goes\\n\\ntoward a separate crime.” Mathis, ___ U.S. at ___, 136 S. Ct. at 2257. The\\n\\nindictment in this case omitted “inveigles” and “decoys” and charged Gillis with\\n\\nsoliciting kidnapping “by seizing, confining, kidnapping, abducting, and carrying\\n\\naway.” The indictment in this case, in charging the § 373 offense, listed multiple\\n\\nmanners of carrying out the underlying § 1201(a) offense. The indictment in this\\n\\ncase did not list one term to the exclusion of all others, indicating that such terms\\n\\nare means, not elements. Moreover, some of the means listed in the indictment are\\n\\nnearly synonymous (i.e., abducting and carrying away) illustrating that a jury need\\n\\nnot agree on the specific means employed, just that the first element was satisfied.\\n\\nBecause all of the information before us points in the same direction, we have no\\n\\ntrouble concluding that § 1201(a) is indivisible and that the categorical, rather than\\n\\nthe modified categorical, approach applies.\\n\\n 43\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 44 of 80\\n\\n\\n In applying the categorical approach, “we must presume that the conviction\\n\\nrested upon [nothing] more than the least of th[e] acts criminalized, and then\\n\\ndetermine whether even those acts” qualify under § 373. See St. Hubert, 909 F.3d\\n\\nat 349 (quoting Moncrieffe v. Holder, 569 U.S. 184, 190-91, 133 S. Ct. 1678, 1684\\n\\n(2013)); United States v. Davis, 875 F.3d 592, 597 (11th Cir. 2017) (“If the statute\\n\\nis indivisible, we use the categorical approach. In that case a conviction under it\\n\\nqualifies as a violent felony only if all of the acts criminalized in the statute involve\\n\\nthe use of physical force against the person of another.”). Accordingly, in\\n\\nconsidering whether violations of § 1201(a) necessarily involve the “use, attempted\\n\\nuse, or threatened use of physical force against property or against the person of\\n\\nanother” as to qualify under § 373(a), we presume that the federal kidnapping\\n\\nconviction rested upon means of inveiglement and/or decoy—the least of the acts\\n\\ncriminalized by § 1201(a).20\\n\\nE. Physical Force Requirement\\n\\n With this least culpable conduct criminalized by § 1201(a) in mind, we must\\n\\nnow determine whether the offense necessarily “has as an element the use,\\n\\nattempted use, or threatened use of physical force against property or against the\\n\\nperson of another” as to satisfy § 373(a). In considering this question, we look to\\n\\n\\n 20\\n Of course, the least of the acts criminalized—inveiglement and decoy—suffices to\\ncommit the crime only if the other element—“holds for ransom or reward or otherwise”—is also\\nsatisfied. § 1201(a).\\n 44\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 45 of 80\\n\\n\\ncases considering the ACCA’s elements clause and § 921(a)(33)(A)’s\\n\\nmisdemeanor crime of domestic violence definition for guidance. This is because,\\n\\nfirst, those statutes have similar force clauses to § 373(a). Compare 18 U.S.C.\\n\\n§ 373(a) (“the use, attempted use, or threatened use of physical force against\\n\\nproperty or against the person of another”), with 18 U.S.C. § 924(e)(2)(B)(i) (“the\\n\\nuse, attempted use, or threatened use of physical force against the person of\\n\\nanother”), and 18 U.S.C. § 921(a)(33)(A) (“the use or attempted use of physical\\n\\nforce”). Second, all the relevant statutes contemplate violent force. Compare 18\\n\\nU.S.C. § 373 (titled “Solicitation to commit a crime of violence”), with 18 U.S.C.\\n\\n§ 924(e)(2)(B) (defining “violent felony”), and 18 U.S.C. § 921(a)(33)(A)\\n\\n(defining “misdemeanor crime of domestic violence”).\\n\\n The Supreme Court, in Curtis Johnson v. United States, considered the\\n\\nmeaning of “physical force” within the ACCA’s elements clause. 559 U.S. 133,\\n\\n138, 130 S. Ct. 1265, 1270 (2010). The Court stated that “[t]he adjective\\n\\n‘physical’ is clear in meaning . . . . It plainly refers to force exerted by and through\\n\\nconcrete bodies—distinguishing physical force from, for example, intellectual\\n\\nforce or emotional force.” Id.; see also Stokeling v. United States, ___ U.S. ___,\\n\\n___, 139 S. Ct. 544, 552 (2019) (stating the same). The Supreme Court, in United\\n\\nStates v. Castleman extended this observation to § 921(a)(33)(A)’s misdemeanor\\n\\ncrime of violence definition. 572 U.S. 157, 170, 134 S. Ct. 1405, 1414 (2014).\\n\\n 45\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 46 of 80\\n\\n\\nWe accordingly have no trouble concluding that § 373(a)’s reference to “physical\\n\\nforce” also “refers to force exerted by and through concrete bodies—distinguishing\\n\\nphysical force from, for example, intellectual force or emotional force.” See Curtis\\n\\nJohnson, 559 U.S. at 138, 130 S. Ct. at 1270.\\n\\n The next question is whether § 1201(a) kidnapping by means of\\n\\ninveiglement or decoy categorically involves the use, attempted use, or threatened\\n\\nuse of physical force sufficient to satisfy § 373(a)’s force clause.\\n\\nF. Kidnapping by Means of Inveiglement or Decoy\\n\\n We first pause to define “inveigle” and “decoy.” The New Oxford\\n\\nAmerican Dictionary defines “inveigle” as to “persuade (someone) to do\\n\\nsomething by means of deception or flattery” while Merriam-Webster’s Collegiate\\n\\nDictionary defines it as “to win over by wiles” and “to acquire by ingenuity or\\n\\nflattery.” New Oxford American Dictionary 913 (3d ed. 2010); Merriam-\\n\\nWebster’s Collegiate Dictionary 616 (10th ed. 1999). As to “decoy,” the New\\n\\nOxford American Dictionary defines it as to “lure or entice (a person or animal)\\n\\naway from an intended course, typically into a trap” while Merriam-Webster’s\\n\\nCollegiate Dictionary defines it as “to lure by or as if by a decoy.” New Oxford\\n\\nAmerican Dictionary 451 (3d ed. 2010); Merriam-Webster’s Collegiate Dictionary,\\n\\n300 (10th ed. 1999). The plain meanings of “inveigle” and “decoy” indicate that\\n\\nthese means of violating the federal kidnapping statute require intellectual or\\n\\n 46\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 47 of 80\\n\\n\\nemotional force, distinct from the requisite physical force required to satisfy\\n\\n§ 373(a)’s force clause.\\n\\n Next, we look to case law considering kidnapping by means of inveiglement\\n\\nand/or decoy prosecuted under § 1201(a) to determine whether the statute\\n\\nnecessarily requires physical force as opposed to intellectual or emotional force.\\n\\n The Supreme Court in Chatwin v. United States reversed the defendants’\\n\\nfederal kidnapping convictions because there was no evidence that the victim was\\n\\n“held” against her will. See 326 U.S. 455, 460-62, 66 S. Ct. 233, 235-36 (1946).\\n\\nDefendant Chatwin, a 68-year-old man, hired a 15-year-old girl, Dorothy Wyler, as\\n\\nhis live-in housekeeper and taught Wyler that plural marriage conformed with the\\n\\ntrue principles of the Mormon faith. Id. at 457, 66 S. Ct. at 234. Wyler entered\\n\\ninto a “celestial marriage” with Chatwin and became pregnant. Id. at 457-58, 66\\n\\nS. Ct. at 234.\\n\\n Wyler’s parents informed the authorities, who took Wyler into juvenile\\n\\ncustody. Id. at 458, 66 S. Ct. at 234. Later, after being dropped off at a movie\\n\\ntheatre by a juvenile probation officer, Wyler left the theatre and ultimately\\n\\ntraveled to Mexico to be legally married to Chatwin. Id. at 458, 66 S. Ct. at 234-\\n\\n35. Subsequently, Wyler and Chatwin traveled back to Utah and then to Arizona,\\n\\nwhere federal authorities eventually found them living under assumed names. Id.\\n\\nat 458, 66 S. Ct. at 235. Chatwin and two codefendants, who had traveled to\\n\\n 47\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 48 of 80\\n\\n\\nMexico with Wyler, were convicted of kidnapping Wyler. Id. at 458-59, 66 S. Ct.\\n\\nat 235.\\n\\n Reversing the convictions, the Supreme Court explained that the kidnapping\\n\\nstatute “contemplates that the kidnapped victim shall have been (1) unlawfully\\n\\nseized, confined, inveigled, decoyed, kidnapped, abducted, or carried away by any\\n\\nmeans whatsoever and (2) held for ransom or reward or otherwise.” Id. at 459,\\n\\n465, 66 S. Ct. at 235, 237 (internal quotation marks omitted). The government\\n\\nargued that both elements were met, asserting that the defendants unlawfully\\n\\n“inveigled” or “decoyed” Wyler away from the custody of her parents and the\\n\\njuvenile court authorities and that she was “held” during the period between her\\n\\nescape from juvenile custody and her trip to Mexico to marry Chatwin. Id. at 459,\\n\\n66 S. Ct. at 235. The Supreme Court rejected those arguments, holding that the\\n\\ngovernment failed to prove that Wyler was “held” within the meaning of the\\n\\nkidnapping statute. Id. at 460, 66 S. Ct. at 235.\\n\\n The Supreme Court explained that:\\n\\n The act of holding a kidnapped person . . . necessarily implies\\n an unlawful physical or mental restraint for an appreciable period\\n against the person’s will and with a willful intent so to confine the\\n victim.\\n\\nId. (emphasis added). There was no evidence in Chatwin that the defendants\\n\\n“imposed at any time an unlawful physical or mental restraint upon [Wyler’s]\\n\\nmovements” or that “she was deprived of her liberty, compelled to remain where\\n 48\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 49 of 80\\n\\n\\nshe did not wish to remain, or compelled to go where she did not wish to go.” Id.\\n\\nIn other words, the government failed to prove an act of unlawful restraint because\\n\\nthere was no proof that the defendants “willfully intended through force, fear or\\n\\ndeception to confine [Wyler] against her desires.” Id. at 460, 66 S. Ct. at 235-36.\\n\\n While not addressing whether the first element of kidnapping can be\\n\\nsatisfied by means of inveiglement and/or decoy not involving the use, threatened\\n\\nuse, or attempted use of physical force, Chatwin makes clear that the second\\n\\n“holding” element may be satisfied by use of “physical or mental restraint.” It\\n\\nmakes clear that the second element (the “holding” requirement) of federal\\n\\nkidnapping can encompass intellectual or emotional force of the type distinguished\\n\\nfrom the requisite “physical force” in Curtis Johnson. See 559 U.S. at 138, 130\\n\\nS. Ct. at 1270.\\n\\n Next, the federal kidnapping considered in United States v. Boone, 959 F.2d\\n\\n1550 (11th Cir. 1992), similarly involved “inveiglement” or “decoy” under\\n\\n§ 1201(a) with no physical restraint of the victim. In Boone, the defendant Boone\\n\\nand the victim Jonathan Wood drank and used drugs together, and Boone later\\n\\nconvinced Wood to travel with him to Georgia, falsely telling Wood of a marijuana\\n\\npatch located there. Id. at 1552. The men drove to Georgia in victim Wood’s car\\n\\nwith Boone at the wheel. Id. In a rural area in Georgia, Boone and Wood\\n\\nproceeded on foot into a wooded area, at which time Boone “borrowed” Wood’s\\n\\n 49\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 50 of 80\\n\\n\\nknife. Id. at 1553. After walking some distance, the victim Wood realized that he\\n\\nhad been deceived and there was no marijuana patch. Id. Boone then stabbed\\n\\nWood, tied him up, and left him to die. Id.\\n\\n This Court determined that there was sufficient evidence to support Boone’s\\n\\n§ 1201 kidnapping conviction.21 Id. at 1557. We explained that inveigling or\\n\\ndecoying someone across state lines alone does not constitute kidnapping. Id. at\\n\\n1555. Rather, kidnapping by inveiglement occurs when “the alleged kidnapper had\\n\\nthe willingness and intent to use physical or psychological force to complete the\\n\\nkidnapping in the event that his deception failed.” Id. (emphasis added). In other\\n\\nwords, “[w]here an inveiglement occurs and force is held in reserve only because\\n\\nthe kidnapper’s deception is operating successfully, an unlawful interference with\\n\\nthe actions of another has occurred—whether or not that person is aware of the\\n\\ninterference—such that a kidnapping and holding has occurred under the statute.”\\n\\nId. at 1556.\\n\\n Applying those principles, this Court concluded that Boone’s conduct\\n\\nconstituted a kidnapping by inveiglement despite the fact that “force was not used\\n\\nprior to the crossing of state lines.” Id. We explained that Boone inveigled Wood\\n\\n\\n\\n 21\\n Although the Boone Court concluded that there “was indeed sufficient evidence for a\\nproperly instructed jury to have convicted the defendant” of kidnapping, the Court remanded\\nBoone’s case for a new trial because the district court did not properly instruct the jury on the\\nintent element of Boone’s kidnapping offense. Boone, 959 F.2d at 1557-58.\\n 50\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 51 of 80\\n\\n\\ninto driving to Georgia and then traveled with him, even driving Wood’s car. Id.\\n\\nThus, Boone remained at all times “in a position where he could use force to\\n\\nensure the kidnapping and transporting of Wood to the remote site where the\\n\\nmurder . . . would take place.” Id. We noted that Boone had placed Wood under\\n\\nboth mental and physical restraints resulting from “the deception Boone created\\n\\nand from Boone’s apparent willingness to use force to keep Wood restrained.”\\n\\nId. 22\\n\\n In reaching this conclusion, the Boone Court distinguished our prior\\n\\nprecedent in United States v. McInnis, 601 F.2d 1319 (5th Cir. 1979),23 in which\\n\\nthe victim was lured from Texas to Mexico, but the victim traveled alone. Boone,\\n\\n959 F.2d at 1556. In the event the victim was not successfully tricked into going to\\n\\nMexico, there were no further steps, forcible or otherwise, to kidnap him. Id. The\\n\\nformer Fifth Circuit stated that the entirely voluntary act of a victim in crossing\\n\\nstate lines does not violate the kidnapping statute even if it was induced by\\n\\ndeception. Id. at 1557.\\n\\n\\n 22\\n Quoting Boone, the Annotations and Comments to this Court’s pattern jury instruction\\non § 1201(a) kidnapping state: “‘Inveiglement’ becomes unlawful under the federal kidnapping\\nstatute, ‘when the alleged kidnapper interferes with his victim’s action, exercising control over\\nhis victim through the willingness to use forcible action should his deception fail.’” Eleventh\\nCircuit Pattern Jury Instructions (Criminal Cases) O49 (2016) (quoting Boone, 959 F.2d at 1555\\nn.5).\\n 23\\n In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this\\nCourt adopted as binding precedent all decisions of the former Fifth Circuit handed down prior\\nto October 1, 1981.\\n 51\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 52 of 80\\n\\n\\n The Boone Court explained that because the victim in McInnis was\\n\\nsupposed to travel alone in crossing state lines, the victim was not “continually\\n\\nsubjected to a kidnapper’s ongoing efforts to maintain the deception and advance\\n\\nthe intended kidnapping.” Id. In other words, the McInnis kidnappers “did not\\n\\nstand ready to use force against their victim, thereby exercising control over him.”\\n\\nId. By contrast, in a case like Boone’s where the kidnapper accompanies the\\n\\ninveigled victim, “[t]he victim is kept from acting in an entirely voluntary manner\\n\\nby the acts, presence, and intent of his inveigling kidnapper.” Id.\\n\\n Boone demonstrates that a federal kidnapping conviction may be sustained\\n\\nwhere kidnapping by means of inveiglement or decoy has occurred without the use\\n\\nof force and where the kidnapper has “the willingness and intent to use physical or\\n\\npsychological force to complete the kidnapping in the event that his deception\\n\\nfailed.” Id. at 1555 (emphasis added). The victim in Boone was inveigled and\\n\\ndecoyed across state lines without the use of physical force. Id. at 1552-53. This\\n\\nCourt determined that it is up to the fact finder to determine whether the kidnapper\\n\\nheld physical or psychological force in reserve “in the event that his deception\\n\\nfailed.” Id. at 1555. Accordingly, Boone makes clear that federal kidnapping may\\n\\nbe committed by means of inveiglement and/or decoy (without the use of physical\\n\\nforce) and then maintained solely by psychological force.\\n\\n\\n\\n 52\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 53 of 80\\n\\n\\n Cases from our sister circuits similarly demonstrate that § 1201(a) can be\\n\\nviolated without the use of physical force. See United States v. Jenkins, 849 F.3d\\n\\n390, 393-94 (7th Cir. 2017) (holding that § 1201(a) kidnapping can be committed\\n\\n“without using, threatening to use, or attempting to use physical force”), judgment\\n\\nvacated on other grounds, 138 S. Ct. 1980 (2018); United States v. Lentz, 383 F.3d\\n\\n191, 203-04 (4th Cir. 2004) (reversing a grant of judgment of acquittal where the\\n\\ndefendant, without physical force, inveigled the victim into traveling across state\\n\\nlines and there was circumstantial evidence that “unlawful physical or mental\\n\\nrestraint” was used to hold the victim); United States v. Wills, 234 F.3d 174, 177\\n\\n(4th Cir. 2000) (“By its terms, § 1201(a) criminalizes kidnappings accomplished\\n\\nthrough physical, forcible means and also by nonphysical, non-forcible means.”);\\n\\nUnited States v. Garcia, 854 F.2d 340, 344-45 (9th Cir. 1988) (holding that a\\n\\nkidnapping continued past the date the defendant told the victim to leave, even\\n\\nthough no force was used after this date, because the psychological effects of the\\n\\nkidnapping persisted). 24\\n\\n The above-discussed cases leave no doubt that § 1201(a) convictions can be\\n\\nsustained in cases where physical force was not used. Beyond those cases, we\\n\\nfurther believe that there is a realistic probability that future federal prosecutions\\n\\n\\n\\n 24\\n See also Delgado-Hernandez v. Holder, 697 F.3d 1125, 1130 (9th Cir. 2012) (stating in\\ndicta that “[t]he federal kidnapping statue has no force requirement.”).\\n 53\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 54 of 80\\n\\n\\ncould charge defendants who have not used physical force with violating\\n\\n§ 1201(a). See United States v. Vail-Bailon, 868 F.3d 1293, 1306 (11th Cir. 2017)\\n\\n(considering hypotheticals proffered by defendant to determine whether Florida\\n\\nfelony battery was a crime of violence). A hypothetical discussed at oral argument\\n\\nprovides a persuasive example of this realistic probability. Consider the following\\n\\nscenario involving a grandparent (A); the grandparent’s child (B); and (C), the\\n\\nchild of B and grandchild of A. A perceives B as an unfit parent, not living up to\\n\\nA’s perception of good parenting (or perhaps influenced by in-law or other\\n\\ndomestic tensions). A decides to intervene and absconds with C, holding C against\\n\\nthe wishes of B and saying that C will be returned to B when B reforms and\\n\\nconforms to A’s perception of a fit parent. In this hypothetical situation, it is\\n\\nentirely feasible that A might abscond with C by inveiglement and hold C using\\n\\npsychological force only—all without the use, threatened use, or attempted use of\\n\\nphysical force against either B or C. 25 We do not believe this hypothetical is of the\\n\\n“far-fetched” variety that this Court has declined to treat as indicating that a statute\\n\\n\\n 25\\n The second element of § 1201(a)—holding “for ransom or reward or otherwise”—is\\neasily satisfied by this hypothetical as it merely requires that the captor seeks to “secure some\\nbenefit to himself.” Gooch v. United States, 297 U.S. 124, 128, 56 S. Ct. 395, 397 (1936).\\n“Otherwise” has been construed broadly to cover many sought benefits. See United States v.\\nSatterfield, 743 F.2d 827, 849-50 (11th Cir. 1984) (determining that kidnapping an individual to\\nsilence them as a potential witness satisfied the “or otherwise” requirement), superseded by\\nstatute on other grounds as recognized by United States v. Edwards, 728 F.3d 1286, 1292 (11th\\nCir. 2013); see also United States v. Smith, 831 F.3d 793, 802 (7th Cir. 2016) (finding “or\\notherwise” to be satisfied where the defendant kidnapped an infant because she wanted a baby);\\nUnited States v. Montgomery, 635 F.3d 1074, 1086 (8th Cir. 2011) (same).\\n 54\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 55 of 80\\n\\n\\ncan be violated in a non-physically forceful manner. See, e.g., id. at 1305.\\n\\nMoreover, innumerable courts (including those discussed above) have followed the\\n\\nSupreme Court in Chatwin in expressly contemplating that the federal kidnapping\\n\\ncrime can be committed by mere inveiglement and holding the victim by either\\n\\nphysical or psychological force. These cases did not involve far-fetched situations;\\n\\nthey demonstrate the realistic probability of future prosecutions of § 1201(a) where\\n\\nthere has been no use, threatened use, or attempted use of physical force.\\n\\n Because § 1201(a) can be violated without the “use, attempted use, or\\n\\nthreatened use of physical force against property or against the person of another”\\n\\nas required by § 373(a)’s force clause, and because we know from Curtis Johnson\\n\\nand its progeny that “physical force” does not include “intellectual force or\\n\\nemotional force,” we conclude that Gillis’s § 373 conviction must be reversed. We\\n\\ndo not reach this conclusion lightly. Undoubtedly, many and perhaps even most\\n\\nfederal kidnappings do, as a factual matter, involve uses of force against the\\n\\nvictim. See, e.g., United States v. Adams, 83 F.3d 1371, 1372 (11th Cir. 1996)\\n\\n(defendant husband kidnapped his wife by attempting to force her into her car and\\n\\nshooting her in the abdomen when she broke free and began to run away).\\n\\nHowever, binding precedent requires that we apply the categorical approach and\\n\\nclose our eyes to Gillis’s actual conduct. And in deciding whether § 1201(a)\\n\\nkidnapping can realistically be committed without the use, threatened use, or\\n\\n 55\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 56 of 80\\n\\n\\nattempted use of physical force, we cannot close our eyes to the fact that the\\n\\nSupreme Court has said that it can be committed using either physical or mental\\n\\nrestraint and that numerous circuit courts have followed suit.\\n\\n For the foregoing reasons, the judgment of the district court is\\n\\n AFFIRMED IN PART AND REVERSED IN PART.\\n\\n\\n\\n\\n 56\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 57 of 80\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4438007/\", \"author_raw\": \"PER CURIAM\"}, {\"author\": \"HULL, Circuit Judge, concurring\", \"type\": \"concurrence\", \"text\": \"HULL, Circuit Judge, concurring in part and dissenting in part:\\n\\n I. CONCURRENCE\\n\\n Gillis challenges his convictions (1) in Count 1 for attempting to knowingly\\n\\ninduce a child to engage in sexual activity, in violation of 18 U.S.C. § 2422(b), and\\n\\n(2) in Count 2 for soliciting another person to “engage in conduct” that constitutes\\n\\nthe felony crime of federal kidnapping under 18 U.S.C. § 1201(a), in violation of\\n\\n18 U.S.C. § 373. I concur in full in Sections I through IV of the panel opinion,\\n\\nwhich affirm Gillis’s child enticement conviction and the district court’s rulings as\\n\\nto the experts’ testimony.\\n\\n II. DISSENT\\n\\n Because I disagree with the majority’s statutory interpretation of § 373, I am\\n\\nunable to concur in Section V of the majority opinion, which vacates Gillis’s § 373\\n\\nconviction for solicitation of the violent kidnapping of his coworker M.O.\\n\\n The statutory text of § 373 explicitly focuses on the “conduct” Gillis\\n\\nsolicited another person to “engage in.” 18 U.S.C. § 373(a) (emphasis added).\\n\\nSpecifically, § 373 makes it unlawful for a defendant, like Gillis, “to solicit another\\n\\nperson with the intent that the other person engage in conduct constituting a felony\\n\\nthat has as an element the use, attempted use or threatened use of physical force”\\n\\nand “under such circumstances strongly corroborative of that intent” to persuade\\n\\n“such other person to engage in such conduct.” 18 U.S.C. § 373 (emphasis added).\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 58 of 80\\n\\n\\nIn my view, the majority’s statutory interpretation of § 373 incorrectly disregards\\n\\nthe “engage in conduct” language used twice in § 373’s text.\\n\\n Despite this “engage in conduct” text, the majority mistakenly construes the\\n\\n§ 373 statutory language to require an ordinary-case categorical approach whereby\\n\\nthe majority considers only a hypothetical defendant’s imagined conduct—as\\n\\nopposed to the actual kidnapping conduct that the indictment charged Gillis with\\n\\nsoliciting. 1 What’s more, the majority decides that the least culpable imagined\\n\\nform of kidnapping would be “inveigling” a victim through deception without\\n\\nphysical force and that because a hypothetical inveiglement kidnapping would not\\n\\nsatisfy the force clause, Gillis’s § 373 conviction for soliciting the violent\\n\\nkidnapping of his co-worker must be vacated. In ignoring the kidnapping conduct\\n\\ncharged in Gillis’s indictment, the majority treats the “engage in conduct” statutory\\n\\nlanguage as mere surplusage and reads it out of the § 373 statute. Here is why I\\n\\ndisagree with the majority’s statutory interpretation of § 373.\\n\\nA. 18 U.S.C. § 373\\n\\n As does the majority, let’s compare the text of § 373 and 18 U.S.C. § 924(c):\\n\\n § 373 makes it unlawful to solicit § 924(c)(1)(A) makes it unlawful to\\n another with the intent that the other use or carry a firearm “during and in\\n person “engage in conduct relation to any crime of violence.”\\n constituting a felony that has as an § 924(c)(3) defines “crime of\\n\\n 1\\n As explained later, even Gillis ignores “inveigles” and “decoys” in the § 1201(a)\\nkidnapping statute and relies on the kidnapping conduct charged in the indictment to resolve this\\ncase, and we should, too.\\n 58\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 59 of 80\\n\\n\\n element the use, attempted use, or violence” as “an offense that is a\\n threatened use of physical force felony” and “(A) has as an element the\\n against property or against the person use, attempted use, or threatened use\\n of another . . ., and under of physical force against the person or\\n circumstances strongly corroborative property of another, or (B) that by its\\n of that intent, solicits, commands, nature, involves a substantial risk that\\n induces, or otherwise endeavors to physical force against the person or\\n persuade such other person to engage property of another may be used in the\\n in such conduct.” (emphasis added) course of committing the offense.”\\n (emphasis added)\\n\\n By now, courts are fully conversant with the § 924(c) text. The § 924(c)(1)\\n\\nsubstantive offense is carrying a firearm during a “crime of violence.” In turn,\\n\\n§ 924(c)(3) defines “crime of violence” as “an offense” that is a felony qualifying\\n\\nunder either a residual clause or an elements clause.\\n\\n In stark contrast, the § 373 text twice refers to “engage in conduct,” and does\\n\\nnot refer to a “crime of violence” or “an offense.” That alone is a major textual\\n\\ndifference. Indeed, to obtain a § 373 conviction, the government must show that:\\n\\n(1) the defendant Gillis solicited another person to “engage in conduct”; (2) that\\n\\nthe solicited conduct constitutes “a felony that has as an element the use, attempted\\n\\nuse, or threatened use of physical force”; and (3) Gillis solicited such other person\\n\\n“to engage in such conduct” “under circumstances strongly corroborative of that\\n\\nintent.” 18 U.S.C. § 373(a) (emphasis added).2\\n\\n\\n 2\\n I recognize that the § 373 statute is titled “Solicitation to commit a crime of violence.”\\nAnd though it might be tempting to look to the title of § 373 in interpreting that statute and\\ndrawing similarities between § 373 and § 924(c), Congress has forbidden us from doing so as to\\nTitle 18. See Act of June 25, 1948, ch. 645, § 19, 62 Stat. 862 (“No inference of a legislative\\n 59\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 60 of 80\\n\\n\\n The § 373 text directs our focus, not once but twice, to the “conduct” that the\\n\\ndefendant solicited the other person to “engage in.” The presence of “conduct”\\n\\nand the absence of other critical terms—such as “conviction,” “offense,” and\\n\\n“crime of violence”—show that § 373 focuses on the actual defendant’s charged\\n\\nconduct (not a hypothetical defendant’s imagined conduct). The § 373 question\\n\\nbefore us is a legal one of the correct statutory interpretation of the text in § 373.3\\n\\nThis is not a close call given § 373’s plain text.\\n\\n To give meaning to the “conduct” text in § 373, I conclude that the § 373\\n\\ntext compels this two-step inquiry: (1) what “conduct” did the defendant Gillis\\n\\nsolicit another person “to engage in”; and (2) then a determination of whether that\\n\\nactual, solicited “conduct” constitutes “a felony that has as an element the use,\\n\\nattempted use, or threatened use of force.” This is not a case where the statute\\n\\nrequires us to determine if “a conviction” or “an offense” is “a felony” that\\n\\nsatisfies the elements clause. Rather § 373’s threshold inquiry is whether the\\n\\n\\n\\n\\nconstruction is to be drawn by reason of the chapter in Title 18, Crimes and Criminal Procedure,\\nas set out in section 1 of this Act, in which any particular section is placed, nor by reason of the\\ncatchlines used in such title.” (emphasis added)). Because § 373 is in Title 18, we cannot use the\\ntitle of § 373 in our statutory construction of § 373’s text.\\n 3\\n There is no residual clause in § 373, and this case involves no constitutional claim.\\n\\n 60\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 61 of 80\\n\\n\\ndefendant solicited another person to “engage in conduct constituting” a felony that\\n\\nsatisfies the elements clause.4\\n\\nB. § 373’s “Conduct” Text Is Best Read as Gillis’s Conduct, Not an\\n Imagined Defendant’s\\n\\n In the threshold inquiry as to what “conduct” defendant Gillis solicited\\n\\nanother person “to engage in,” let’s start with the § 373 count in the indictment,\\n\\ngiven the jury convicted Gillis of that charged conduct. The § 373 count explicitly\\n\\ncharged that the “conduct” Gillis solicited another person to “engage in” was\\n\\nkidnapping by (1) “seizing, confining, kidnapping, abducting, and carrying away”\\n\\nthe victim, and (2) holding that victim, in violation of § 1201(a). That charged\\n\\nconduct is literally five of the statutory terms listed in the § 1201(a) kidnapping\\n\\nstatute, which provides:\\n\\n Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps,\\n abducts, or carries away and holds for ransom or reward or otherwise\\n any person, except in the case of a minor by the parent thereof . . .\\n shall be punished by imprisonment for any term of years or for\\n life . . . .\\n\\n\\n\\n\\n 4\\n It is also noteworthy that § 924(c)(1)(A) refers to a “crime of violence” and then\\n§ 924(c)(3) defines “crime of violence” as “an offense that is a felony”; whereas, § 373 refers to\\n“engage in conduct constituting a felony.” To constitute means to “compose, comprise, form\\n[or] make up.” See Constitute, Merriam-Webster Unabridged, http://unabridged.merriam-\\nwebster.com/unabridged/constitute (last visited Aug. 15, 2019). That the conduct must\\n“constitute” a felony further suggests that a threshold inquiry as to the specific conduct the\\ndefendant solicited is needed to determine whether that conduct makes up or comprises a felony\\nthat satisfies the force element.\\n 61\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 62 of 80\\n\\n\\n18 U.S.C. § 1201(a) (emphasis added). While § 1201(a) sets forth seven\\n\\nalternative types of kidnapping conduct that establish the first element of the crime,\\n\\nthe § 373 count charged Gillis with soliciting five of them: seizing, confining,\\n\\nkidnapping, abducting, and carrying away the victim.5\\n\\n Importantly though, in Gillis’s case, both the indictment and jury\\n\\ninstructions did not charge or include the two statutory terms of “inveigles” and\\n\\n“decoys.” In the district court, even Gillis agreed those two statutory\\n\\nalternatives—“inveigles” and “decoys”—should not be used in the jury charge, as\\n\\nhe was not charged with that type of kidnapping conduct. 6 In his brief on appeal,\\n\\nGillis also does not ask this Court to examine the “inveigles” or “decoys” conduct\\n\\nin § 1201(a).\\n\\n Yet the majority, at the outset of its § 373 analysis, (1) mistakenly examines\\n\\nonly the statutory terms of “inveigles” and “decoys” and (2) then analyzes only\\n\\nwhether kidnapping by “inveigles” or “decoys” constitutes “a felony” that qualifies\\n\\nunder § 373’s force clause. The majority’s legal error in departing from § 373’s\\n\\n 5\\n As the majority opinion correctly states, the two elements of a § 1201(a) kidnapping are:\\n(1) unlawfully seizing, confining, inveigling, decoying, kidnapping, abducting, or carrying away\\nthe victim; and (2) holding the victim for ransom, reward, or other benefit. See Maj. Op. at 39.\\n 6\\n The omission of “inveigles” and “decoys” was intentional, not accidental. Gillis initially\\nobjected to the proposed kidnapping jury instruction because it listed only some of the statutory\\nalternatives—“kidnap, seize, confine, abduct, or carry away”—and omitted other forms of\\nkidnapping in the § 1201(a) statute (“inveigles” and “decoys”). At trial, the district court\\nexplained that the jury instruction matched the forms of kidnapping charged in the indictment,\\nbut asked, “So do you want me to add the words that they haven’t charged in their Indictment?”\\nGillis’s counsel initially replied that he did, but then withdrew his request.\\n 62\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 63 of 80\\n\\n\\ntext causes a misguided focus on only “inveigles” and “decoys” and a hypothetical\\n\\ndefendant’s imagined conduct under an ordinary-case interpretation.\\n\\n In doing so, the majority improperly treats the “engage in conduct” language\\n\\nin the § 373 solicitation statute as mere surplusage and effectively reads it out of\\n\\nthat statute. See, e.g., Corley v. United States, 556 U.S. 303, 314, 129 S. Ct. 1558,\\n\\n1566 (2009) (“[O]ne of the most basic interpretive canons [is] that a statute should\\n\\nbe construed so that effect is given to all its provisions, so that no part will be\\n\\ninoperative or superfluous, void or insignificant.”); Garcia v. Vanguard Car Rental\\n\\nUSA, Inc., 540 F.3d 1242, 1247 (11th Cir. 2008) (stating that under the canon\\n\\nagainst surplusage, “we strive to give effect to every word and provision in a\\n\\nstatute when possible”); see also Henson v. Santander Consumer USA, Inc., 582\\n\\nU.S. __, __, 137 S. Ct 1718, 1725 (2017) (“Legislation is, after all, the art of\\n\\ncompromise, the limitations expressed in statutory terms often the price of\\n\\npassage[.]”); Nielsen v. Preap, 586 U.S. __, __, 139 S. Ct. 954, 969 (2019)\\n\\n(plurality opinion of Alito, J.) (noting that under the canon against surplusage,\\n\\n“every word and every provision [of a statute] is to be given effect” and none\\n\\n“should needlessly be given an interpretation that causes it . . . to have no\\n\\nconsequence”).\\n\\n As discussed later, both Gillis and the government, unlike the majority, start\\n\\ntheir own analysis with the “conduct” that Gillis actually solicited. To be sure,\\n\\n 63\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 64 of 80\\n\\n\\nGillis and the government disagree about where to find what “conduct” Gillis\\n\\nactually solicited. Gillis looks to only the specific type of kidnapping conduct\\n\\ncharged in the indictment. The government says “conduct” is the violent\\n\\nkidnapping conduct shown in the trial evidence. But my point here is only that\\n\\neven Gillis does not ask this Court to look to imagined conduct that was never\\n\\ncharged against him. Given § 373’s conduct-based text, Gillis rightly ignores\\n\\n“inveigles” and “decoys” in the § 1201(a) statute, and we must too.7\\n\\n In short, the majority’s error is at its first step—that is, construing the plain\\n\\n“engage in conduct” language of § 373 to mean a hypothetical defendant’s\\n\\nimagined conduct during an ordinary-case. In my view, the text of § 373 is best\\n\\nread to focus on the “conduct” that the defendant actually solicited another person\\n\\n“to engage in.”\\n\\nC. Majority’s Reasons for Its Statutory Interpretation\\n\\n So, why does the majority ignore § 373’s “conduct” text and read § 373 in\\n\\nsuch an unnatural way? The majority gives several reasons.\\n\\n First, the majority believes it must follow United States v. McGuire, 706\\n\\nF.3d 1337 (11th Cir. 2013), as a result of our Court’s well-established prior panel\\n\\n\\n 7\\n In his brief, Gillis notes that although § 1201(a) also includes “inveigles” and “decoys”\\nas methods of kidnapping, “neither of those verbs were charged in the superseding indictment or\\ncharged to the jury.” Though Gillis does not say so explicitly, it appears that this is the reason he\\nfocuses on kidnapping by “confining” the victim, as charged in the indictment, as opposed to\\nthese other two statutory forms of kidnapping.\\n 64\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 65 of 80\\n\\n\\nprecedent rule. That rule “obligates us to follow the holdings of an earlier\\n\\ndecision, but the holdings of a prior decision can reach only as far as the facts and\\n\\ncircumstances presented to the court in the case which produced that decision.”\\n\\nAnders v. Hometown Mortg. Servs., Inc., 346 F.3d 1024, 1031 (11th Cir. 2003);\\n\\nsee also Edwards v. Prime, Inc., 602 F.3d 1276, 1298 (11th Cir. 2010) (“We have\\n\\npointed out many times that regardless of what a court says in its opinion, the\\n\\ndecision can hold nothing beyond the facts of that case.”).\\n\\n Because McGuire interpreted § 924(c), its holding—that whether a “crime of\\n\\nviolence” is an “offense that is a felony” as defined by an elements clause requires\\n\\na categorical approach—is binding on subsequent panels only in § 924(c) cases.\\n\\nSee United States v. Fulford, 662 F.3d 1174, 1178-79 (11th Cir. 2011) (concluding\\n\\nthis Court was not bound by prior precedent interpreting the definition of the term\\n\\n“minor” found in other provisions of the Sentencing Guidelines).\\n\\n What the majority opinion is really doing here is extending the reasoning of\\n\\nMcGuire to another statute, § 373(a), which has a materially different text.\\n\\nAlthough an elements clause follows the word “felony,” the § 373 text first refers\\n\\nto solicitation of another person to “engage in conduct constituting a felony.” In\\n\\ncontrast, § 924(c) refers to “a crime of violence” defined as “an offense that is a\\n\\nfelony.” The majority’s extension of McGuire to the § 373 text is not something\\n\\nthe prior panel precedent rule obligates us to do. See Anders, 346 F.3d at 1031\\n\\n 65\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 66 of 80\\n\\n\\n(explaining, under the prior panel precedent rule, the Court is “not obligated to\\n\\nextend the decision to different situations”); Dantzler v. IRS, 183 F.3d 1247, 1251\\n\\n(11th Cir. 1999) (“[T]here is a big difference between following a precedent where\\n\\nthe prior-precedent rule demands it and extending a precedent.”). As outlined\\n\\nabove, I am not persuaded that the text of § 373(a) means a hypothetical\\n\\ndefendant’s imagined conduct.\\n\\n Second, the majority relies on United States v. Davis, 588 U.S. __, 139\\n\\nS. Ct. 2319 (2019). If anything, Davis further persuades me that the § 373\\n\\n“conduct” text is different in critical ways from the “offense”-based text in\\n\\n§ 924(c)(3) addressed in McGuire. To be sure, while Davis’s holding is about the\\n\\nresidual clause, the key text in § 924(c) on which the Davis majority focused was\\n\\nthe word “offense,” which came before both the residual and elements clauses.\\n\\nSee id. at __, 139 S. Ct. at 2327-29. In Davis, the Supreme Court reasoned that the\\n\\nword “offense” can carry at least two possible meanings: “It can refer to a generic\\n\\ncrime, say the crime of fraud or theft in general, or it can refer to the specific acts\\n\\nin which an offender engaged on a specific occasion.” Id. at 2328.\\n\\n Here, however, the § 373 statute does not use the word “offense.” Rather,\\n\\n§ 373’s text—“conduct” that Gillis solicited another person “to engage in”—has\\n\\nonly one plausible meaning or interpretation: the specific conduct that Gillis\\n\\nsolicited. How the Davis 5-4 decision struggled mightily with even the word\\n\\n 66\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 67 of 80\\n\\n\\n“offense” suggests Gillis’s case is more easily decided because of both the\\n\\npresence of the “conduct” text in the § 373 statute and the absence of the terms\\n\\n“offense,” “conviction,” or “crime of violence” before the elements clause.8 Davis\\n\\ndoes not demand as much of us as the majority contends.\\n\\n Third, the majority points out that the Supreme Court has told us that the\\n\\nordinary-case, categorical approach applies to the Armed Career Criminal Act\\n\\n(“ACCA”), 18 U.S.C. § 924(e). But the ACCA refers to “convictions,” not\\n\\n“conduct.”9 See Johnson v. United States, 576 U.S. __, __, 135 S. Ct. 2551, 2562\\n\\n(2015) (“The relevant part of the [ACCA] refers to ‘a person who . . . has three\\n\\nprevious convictions’ for—not a person who has committed—three previous\\n\\nviolent felonies or drug offenses.”); see also Sessions v. Dimaya, 584 U.S. __, __,\\n\\n138 S. Ct. 1204, 1217 (2018) (“Our decisions have consistently understood\\n\\nlanguage in the residual clauses of both ACCA and § 16 to refer to the statute of\\n\\nconviction, not to the facts of each defendant’s conduct.”); Mathis v. United States,\\n\\n\\n\\n\\n 8\\n As the dissent in Davis points out, even the term “‘offense’ was read in Hayes,\\nKawashima, and Nijhawan to encompass both the legal prohibition and the defendant’s\\nconduct,” and that “offense” in § 924(c)(3) “should be read that same way.” Davis, 588 U.S. at\\n__, 139 S. Ct. at 2347 (Kavanaugh, J., dissenting) (emphasis added). Here, § 373 explicitly\\nrefers to “conduct,” a critical term in the required statutory interpretation of § 373.\\n 9\\n Section 16(b) uses the word “offense,” rather than “conviction,” but the Supreme Court\\ninterpreted “offense” to indicate essentially the same thing as “conviction” in this context. See\\nSessions v. Dimaya, 584 U.S. __, __, 138 S. Ct. 1204, 1217 (2018).\\n 67\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 68 of 80\\n\\n\\n579 U.S. __, __, 136 S. Ct. 2243, 2252 (2016) (pointing out that the “ACCA refers\\n\\nto predicate offenses in terms not of prior conduct but of prior ‘convictions’”).10\\n\\n Fourth, the majority reasons that it must analyze “inveigles” and “decoys”\\n\\nbecause (1) § 1201(a) sets forth alternative means of committing kidnapping,\\n\\nrather than alternative elements defining separate kidnapping crimes, and\\n\\n(2) § 1201(a) is thus not divisible under Mathis. See Maj. Op. at 39-43.11\\n\\n Tellingly though, Mathis, like Johnson, involved the ACCA, which refers to\\n\\n“convictions,” not “conduct.” See Mathis, 579 U.S. at __, 136 S. Ct. at 2248. In\\n\\nthat context, the Mathis Court explained, determining whether a prior conviction\\n\\ncategorically qualifies as an ACCA predicate offense requires courts to “focus\\n\\nsolely on whether the elements of the crime of conviction sufficiently match the\\n\\nelements” of the relevant ACCA predicate (Iowa burglary in Mathis). Id. Thus,\\n\\n“[d]istinguishing between elements and facts is . . . central to ACCA’s operation.”\\n\\nId. It was only against the ACCA’s prior conviction backdrop that the Mathis\\n\\nCourt concluded courts may not, in a case involving an indivisible statute, use the\\n\\n\\n\\n 10\\n In addition, neither of the two reasons about past convictions identified in Johnson and\\nDimaya apply to § 373. Undisputedly, § 373 operates in the present, and Gillis was convicted by\\na jury, obviating any Sixth Amendment or Shepard concerns. See Shepard v. United States, 544\\nU.S. 13, 24-26, 125 S. Ct. 1254, 1262-63 (2005).\\n 11\\n The majority opinion explains, relying in part on Mathis, that a statute that sets out\\nvarious different means of satisfying a particular element is not divisible, and therefore is not\\nsubject to the modified categorical approach, which permits courts to look beyond the statutory\\ntext to determine what version of the crime a defendant was convicted of. See Maj. Op. at 39-40.\\n 68\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 69 of 80\\n\\n\\nmodified categorical approach to determine how a given defendant actually\\n\\nperpetrated the crime that resulted in the prior conviction. See id. at __, 136 S. Ct.\\n\\nat 2251-54. Even Mathis itself points out that the “ACCA refers to predicate\\n\\noffenses in terms not of prior conduct but of prior ‘convictions.’” Id. at __, 136\\n\\nS. Ct. at 2252.\\n\\n Unlike the “conviction” text in the ACCA’s § 924(e), the text that matters\\n\\nhere is § 373, which directs courts to consider not prior “convictions” or\\n\\n“offenses,” but the “conduct” Gillis solicited another person to “engage in.”\\n\\nBecause of this “conduct” language, the § 373 text requires us to determine what\\n\\ntype of kidnapping conduct Gillis was charged with, and convicted of, soliciting.\\n\\n Fifth, the majority reasons that there is “little difference” between § 373’s\\n\\nuse of the phrase “engage in conduct constituting a felony” and the use of the\\n\\nphrase “crime of violence,” defined as “an offense that is a felony” in § 924(c) and\\n\\n§ 16. Maj. Op. at 34. Yet, the majority’s statutory interpretation ignores the\\n\\npresumption of consistent usage, which “instructs that ‘[a] word or phrase is\\n\\npresumed to bear the same meaning throughout a text’ and that ‘a material\\n\\nvariation in terms suggests a variation in meaning.’” In re Failla, 838 F.3d 1170,\\n\\n1176-77 (11th Cir. 2016) (quoting Antonin Scalia & Bryan Garner, Reading Law:\\n\\nThe Interpretation of Legal Texts 170 (2012)). These three statutes are within the\\n\\nsame Comprehensive Crime Control Act (“CCCA”), but Congress chose to use\\n\\n 69\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 70 of 80\\n\\n\\ndifferent language in § 373.12 Under this interpretive canon, these material\\n\\nvariations in § 373’s terms indicate that Congress intended a different meaning for\\n\\nthe federal solicitation crime.\\n\\n One more related observation. While the text controls, the legislative history\\n\\nof § 373 also does not support the majority’s conclusion. As originally proposed,\\n\\n§ 373, like § 924(c), would have directly relied on § 16’s crime of violence\\n\\ndefinition.13 In the original draft of the CCCA, § 373 proscribed the solicitation of\\n\\n“another person [to] engage in conduct constituting a crime of violence” H.R.\\n\\nDoc. No. 98-32, at 319 (1983) (emphasis added) (setting out the proposed text of\\n\\n§ 373). For purposes of the proposed § 373, the term “crime of violence” was to\\n\\nbe defined in a new section 16 (also added to title 18) that had both residual and\\n\\nelements clauses. Id., at 596.\\n\\n Notably, however, § 373, unlike § 924(c), was amended during the drafting\\n\\nprocess, and § 373 as enacted no longer relied on § 16’s definition of “crime of\\n\\nviolence,” and did not include the terms “crime of violence” or “offense” in its\\n\\nstatutory text. See Comprehensive Crime Control Act of 1984, Pub. L. No. 98-\\n\\n\\n 12\\n See Rusello v. U.S., 464 U.S. 16, 23, 104 S. Ct. 296, 200 (1983) (declining to read a\\nterm appearing in two subsections of a statute to have the same meaning where there is “differing\\nlanguage” in the subsections, explaining that if Congress had intended the two subsections to\\nhave the same meaning, it would have written the statute that way).\\n 13\\n As the majority correctly notes, in the CCCA, § 924(c) did not contain its own\\ndefinition of “crime of violence,” instead relying on the definition in § 16. See Maj. Op. at 33\\nn.12.\\n 70\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 71 of 80\\n\\n\\n473, § 1003(a), 98 Stat. 2138 (1984). Instead, the final, enacted version of § 373\\n\\nproscribed only, in relevant part, solicitation of “another person [to] engage in\\n\\nconduct constituting a felony.” Id. The fact that Congress rejected the original,\\n\\nproposed version of § 373, which would have incorporated § 16’s “crime of\\n\\nviolence” and “offense” terminology and definition wholesale, is another\\n\\nindication that Congress intended § 373 to be construed differently from § 924(c)\\n\\nand § 16. It cannot be that § 373’s “conduct” text makes no difference whatsoever,\\n\\nas the majority concludes.\\n\\n So far, I have covered only the required statutory interpretation of § 373 and\\n\\nthe majority’s legal error in its statutory interpretation. Given § 373’s “conduct”\\n\\ntext, I now examine: (1) the “conduct” Gillis solicited another person to “engage\\n\\nin”; and (2) then whether that solicited “conduct” constitutes a felony that satisfies\\n\\n§ 373’s force clause.\\n\\n III. STEP ONE: WHAT CONDUCT DID GILLIS SOLICIT?\\n\\n The correct statutory interpretation is easier than the issue of where do we\\n\\nlook to find Gillis’s “conduct” to give meaning to “conduct” in the § 373 text.\\n\\n In the first step, the government argues that we should look at the real-world\\n\\nfacts showing the actual conduct Gillis solicited. The content of Gillis’s\\n\\nsolicitation was by email and thus not disputed. As the majority recounts, Gillis\\n\\nsolicited Agent Hyre to help him “snag” his coworker M.O. and “use her a[s] a sex\\n\\n 71\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 72 of 80\\n\\n\\nslave.” Specifically, Gillis asked Agent Hyre to recruit other “experienced”\\n\\nindividuals to help them kidnap M.O., telling Agent Hyre that they would need a\\n\\nvan and a place to keep M.O. for at least 24 hours, suggesting that they should\\n\\nhood or blindfold M.O. and wear masks themselves, and indicating that he did not\\n\\ncare what happened to M.O. after they were done with her. The government\\n\\nargues that the relevant, actual conduct here is the solicitation of a violent\\n\\nabduction and kidnapping.\\n\\n On the other hand, Gillis identifies and limits his convicted conduct to\\n\\nkidnapping by “seizing, confining, kidnapping, abducting, and carrying away” the\\n\\nvictim, given that is the only conduct charged in the indictment and jury\\n\\ninstructions. As to that conduct, Gillis argues (1) that the least culpable conduct of\\n\\nthat charged in the indictment is kidnapping by “confining” the victim, and (2) that\\n\\n“confining” does not necessarily and categorically satisfy § 373’s force clause.\\n\\n The resolution of this particular case does not require a choice between:\\n\\n(1) the government’s deep dive into the trial evidence about the actual, violent\\n\\nkidnapping of his coworker that Gillis solicited; or (2) Gillis’s focus on solely the\\n\\nkidnapping conduct of “confining” the victim as charged in the indictment. That is\\n\\n\\n\\n\\n 72\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 73 of 80\\n\\n\\nbecause, as explained below, even the kidnapping conduct of “confining” the\\n\\nvictim categorically satisfies § 373’s force clause.14 I explain why.\\n\\n IV. STEP TWO: PHYSICAL FORCE CLAUSE\\n\\n In step two, and accepting Gillis’s focus on the least culpable conduct\\n\\ncharged in the indictment, the inquiry is does the kidnapping Gillis solicited—\\n\\nkidnapping by confining the victim—constitute “a felony that has as an element\\n\\nthe use, attempted use, or threatened use or physical force.” 18 U.S.C. § 373(a).\\n\\nLike the majority, I review the Supreme Court’s physical-force decisions.\\n\\nA. Physical Force Requirement\\n\\n In Curtis Johnson, the Supreme Court instructed that “physical” refers to\\n\\n“force exerted by and through concrete bodies,” as opposed to “intellectual force or\\n\\nemotional force.” Curtis Johnson v. United States, 559 U.S. 133, 138, 130 S. Ct.\\n\\n1265, 1270 (2010). The Supreme Court determined that “in the context of a\\n\\nstatutory definition of ‘violent felony,’ the phrase ‘physical force’ means violent\\n\\nforce—that is, force capable of causing physical pain or injury to another person.”\\n\\nId. at 140, 130 S. Ct. at 1271. In Castleman, the Supreme Court reiterated that\\n\\n\\n\\n 14\\n As an aside, the jury charge used “or” and stated that the government must prove Gillis\\nsolicited a kidnapping by “kidnapp[ing], seiz[ing], confin[ing], abduct[ing], or carry[ing] away,”\\nalthough the indictment used “and” between the statutory terms. (emphasis added). While the\\njury found Gillis guilty of the § 373 count, it was a general verdict that did not identify which of\\nthese five types of kidnapping conduct Gillis solicited. This is another reason why I will assume\\nthat the least culpable conduct in the indictment, that Gillis was convicted of soliciting, is\\nkidnapping by “confining,” as Gillis argues.\\n 73\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 74 of 80\\n\\n\\n“physical force” in 18 U.S.C. § 921(a)(33)(A)(ii) simply denotes force that is\\n\\nexerted by and through concrete bodies, as opposed to intellectual or emotional\\n\\nforce, and that it encompasses both indirect and direct uses of force. United States\\n\\nv. Castleman, 572 U.S. 157, 170-71, 134 S. Ct. 1405, 1414-15 (2014). The\\n\\nSupreme Court explained that, for example, the “use of force” in a poisoning case\\n\\nis not the act of sprinkling the poison, but rather is “the act of employing poison\\n\\nknowingly as a device to cause physical harm.” Id. at 171, 134 S. Ct. at 1415.\\n\\n“That the harm occurs indirectly, rather than directly (as with a kick or punch),\\n\\ndoes not matter.” Id.\\n\\n Then, in Stokeling, the Supreme Court re-examined the meaning of\\n\\n“physical force,” defined as “force capable of causing physical pain or injury.”\\n\\nStokeling v. United States, 586 U.S. __, __, 139 S. Ct. 544, 553 (2019). The\\n\\nSupreme Court rejected Stokeling’s argument that a heightened force\\n\\nrequirement—“force that is reasonably expected to cause pain or injury”—should\\n\\napply in the ACCA context. Id. at __, 139 S. Ct. 554. The Supreme Court\\n\\nexplained that it had declined to adopt such a standard in Curtis Johnson and\\n\\ninstead “settled on force capable of causing physical pain or injury.” Id. And the\\n\\nterm capable “does not require any particular degree of likelihood or probability\\n\\nthat the force used will cause physical pain or injury; only potentiality.” Id. The\\n\\nSupreme Court elaborated that the term “physical force” includes force that could\\n\\n 74\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 75 of 80\\n\\n\\n“lead[] to relatively minor forms of injury,” including “hitting, slapping, shoving,\\n\\ngrabbing, pinching, biting, and hair pulling.” Id. 15\\n\\n In sum, these Supreme Court decisions instruct that “physical force” in the\\n\\nelements clause context means: (1) an act that is physical, in that it must be\\n\\n“exerted by and through concrete bodies,” not “intellectual force or emotional\\n\\nforce”; (2) a physical act that is directly or indirectly “capable of causing physical\\n\\npain and injury”; and (3) “capable” means that the force “potentially” will cause\\n\\nphysical pain or injury, not that it is “reasonably likely” to do so.\\n\\nB. Kidnapping by Unlawful “Confining” Satisfies § 373’s Force Clause\\n\\n The final § 373 question is whether Gillis’s kidnapping conduct—\\n\\n“unlawfully confining” the victim—necessarily and categorically involves the use,\\n\\nattempted use, or threatened use of physical force.\\n\\n The government relies on United States v. Salemi, 26 F.3d 1084, 1086-87\\n\\n(11th Cir. 1994), where the government appealed Salemi’s sentence, which was\\n\\nreduced due to his mental illness. Vacating Salemi’s sentence, we held that the\\n\\nSentencing Guidelines provided that mental conditions should not be considered\\n\\n\\n\\n 15\\n The majority in Stokeling also rejected the defendant’s argument, echoed by the\\ndissenters in that case, that “physical force,” as defined by the Curtis Johnson Court, meant a\\n“strong,” “substantial” or “heightened” degree of force. See Stokeling, 586 U.S. at __, 139 S. Ct.\\nat 553 (rejecting Stokeling’s argument that Curtis Johnson held that physical force means\\n“substantial force” or force that is “severe,” “extreme,” “furious,” or “vehement”); id. at __, 139\\nS. Ct. at 557-58 (Sotomayor, J., dissenting) (arguing that Curtis Johnson interpreted “physical\\nforce” to mean a “strong” or “substantial degree of force”).\\n 75\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 76 of 80\\n\\n\\nwhen a defendant commits a crime of violence, and Salemi’s § 1201(a) kidnapping\\n\\nconviction qualified as a crime of violence under the elements clause in U.S.S.G.\\n\\n§ 4B1.2. See id. at 1087-88. This Court explained that the Commentary to\\n\\n§ 4B1.2 expressly listed kidnapping as a crime of violence, and the Commission\\n\\nhad “recognized that kidnapping inherently involves the threat of violence.” Id. at\\n\\n1087. Because Salemi was based on authoritative Guidelines commentary, it does\\n\\nnot answer the § 373 question here. 16\\n\\n Nevertheless, the ordinary meanings of the terms “unlawfully” and\\n\\n“confining,” used in the § 1201(a) kidnapping statute, help provide the answer.\\n\\n“Courts must assume that Congress intended the ordinary meaning of the words\\n\\nused, and absent a clearly expressed legislative intent to the contrary, that language\\n\\nis generally dispositive.” Arcia v. Florida Sec’y of State, 772 F.3d 1335, 1344\\n\\n(11th Cir. 2014).\\n\\n The Oxford English Dictionary defines “confine” as “[t]o shut up, imprison,\\n\\nimmure, put or keep in detention,” “[t]o enclose or retain within limits; to fasten,\\n\\nsecure, keep in place,” and “[t]o keep within bounds, limit, restrict.” Confine,\\n\\n\\n\\n\\n 16\\n See In re Burgest, 829 F.3d 1285, 1287 (11th Cir. 2016) (holding defendant’s prior\\nFlorida conviction for kidnapping is categorically a crime of violence under the Guidelines,\\nciting the commentary to § 4B1.2). After Salemi and In re Burgest, the Commission revised\\n§ 4B1.2 itself to explicitly enumerate that kidnapping is a crime of violence. See U.S.S.G.\\n§ 4B1.2(a)(2) (2016) (defining crime of violence in part as an offense under state or federal law,\\npunishable by an imprisonment term exceeding one year, that “is . . . kidnapping”).\\n 76\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 77 of 80\\n\\n\\nOED Online, http://www.oed.com/view/Entry/38837?result=4&rskey=CRLpAy&\\n\\n(last visited Aug. 14, 2019). Similarly, Merriam-Webster’s Unabridged Dictionary\\n\\ndefines “confine” as “to hold within bounds: restrain from exceeding boundaries,”\\n\\n“to keep in narrow quarters: imprison,” and “to keep to a certain place or to a\\n\\nlimited area.” Confine, Merriam-Webster Unabridged, http://unabridged.merriam-\\n\\nwebster.com/unabridged/confine (last visited Aug. 14, 2019).\\n\\n Let’s not forget that only “unlawfully” confining the victim suffices for a\\n\\n§ 1201(a) kidnapping. Black’s Law Dictionary defines “unlawful” as “[n]ot\\n\\nauthorized by law; illegal,” “[c]riminally punishable,” and “[i]nvolving moral\\n\\nturpitude.” Unlawful, Black’s Law Dictionary (11th ed. 2019). Likewise, the\\n\\nOxford English Dictionary defines “unlawful” as “[c]ontrary to or prohibited by\\n\\nlaw; not conforming to, permitted by, or recognized by law; illegal; unjust,\\n\\nwrongful,” “[c]ontrary to or prohibited by moral standards or religious precepts;\\n\\nimmoral, unethical; wicked, sinful,” and “not obeying the law; acting illegally or\\n\\nwithout legal authority; without legal standing.” Unlawful, OED Online,\\n\\nhttp://www.oed.com/view/Entry/215008?redirectedFrom=unlawful#eid (last\\n\\nvisited Aug. 14, 2019).\\n\\n These definitions of “confine” all involve a physical act of some sort,\\n\\nwhether it is shutting up, detaining, or imprisoning a victim, or merely keeping the\\n\\nvictim within bounds or in a limited area. See Curtis Johnson, 559 U.S. at 138-39,\\n\\n 77\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 78 of 80\\n\\n\\n130 S. Ct. at 1270. Such confinement must also be wrongful and illegal, and thus\\n\\nagainst the victim’s will. To accomplish such confinement, the kidnapping\\n\\nnecessarily requires some use or threat of physical force against the victim’s\\n\\nperson in order to secure the wrongful or illegal detention, imprisonment, or\\n\\nconfinement, while the kidnapper seeks ransom, reward, or some other benefit.\\n\\n That fact is supported by the pattern jury instructions. As the government\\n\\nemphasizes, the pattern jury instructions, given as to all forms of kidnapping\\n\\ncharged in this case, provided: “To ‘kidnap’ a person means to forcibly and\\n\\nunlawfully hold, keep, detain, and confine that person against the person’s will.\\n\\nInvoluntariness or coercion related to taking and keeping the victim is an essential\\n\\npart of the crime.” (emphasis added).\\n\\n On balance, I am convinced by the government’s argument that kidnapping\\n\\nby “unlawfully confining” the victim is an active, intentional, violent crime (1) that\\n\\ncauses a serious interference with the freedom and movement of the victim against\\n\\nhis or her will, (2) that also necessarily involves a protracted, not merely\\n\\nmomentary, period of such confinement while the kidnapper seeks ransom, reward,\\n\\nor other benefit, and (3) that inherently implies a threat of force if the victim tries\\n\\nto escape. See United States v. Patino, 962 F.2d 263, 267 (2d Cir. 1992) (citing the\\n\\nelements clause in § 924(c)(3) and stating, albeit without any analysis, “That the\\n\\ncrime of kidnapping involves the threatened use of physical force against a person\\n\\n 78\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 79 of 80\\n\\n\\nand is thus a crime of violence under this statute cannot be questioned.”).17\\n\\nBecause kidnapping by unlawfully confining a victim inherently involves at least\\n\\nthe threat of violence, it satisfies § 373’s force clause. 18\\n\\n I recognize that Gillis contends that kidnapping by confinement is shown\\n\\nwhere a defendant lures a victim into a room and locks the door without using\\n\\nphysical force against the victim’s person. Gillis argues this is a plausible example\\n\\nof confinement by non-physical means or at least by physical acts not capable of\\n\\ncausing pain or injury. Yet I am unable to locate any successful kidnapping\\n\\nprosecutions in this circuit for merely locking a door to a room. Nor have the\\n\\nparties cited one. Gillis’s hypothetical ignores that the Supreme Court and this\\n\\n\\n 17\\n The majority opinion cites the Seventh Circuit’s decision in Jenkins, which held that\\n§ 1201(a) kidnapping did not qualify as a crime of violence under § 924(c)(3). United States v.\\nJenkins, 849 F.3d 390, 394 (7th Cir. 2017), vacated and remanded, 138 S. Ct 1980 (2018).\\nHowever, Jenkins does not address the first element of “unlawfully confining” the victim, but\\ndiscusses only “holding for ransom or reward or otherwise.” See id. at 393. The government in\\nJenkins rested its force argument on only the second element of § 1201(a) kidnapping: “holding\\nfor ransom or reward or otherwise.” Id. (alteration omitted). Thus, the Seventh Circuit\\nconcluded only that § 1201(a) “[h]olding can be accomplished without physical force,” and made\\nno ruling as to whether “unlawfully confining” inherently involves a threat of force. Id.\\n 18\\n The kidnapping decisions discussed by the majority involve “inveigles” or “decoys” or\\ndiscuss the second element of “hold” for ransom or reward. See, e.g., United States v. Boone,\\n959 F.2d 1550, 1555-57 (11th Cir. 1992) (inveiglement and/or decoy); United States v. McInnis,\\n601 F.2d 1319, 1321, 1323-26 (5th Cir. 1979) (same); see also Chatwin v. United States, 326\\nU.S. 455, 459-61, 66 S. Ct. 233, 235-36 (1946) (concluding there was no evidence the defendant\\n“held” the victim against her will where the defendant had “inveigled” or “decoyed” the victim\\nfrom the custody of state juvenile court authorities); Jenkins, 849 F.3d at 393 (“holding” element\\ncan be accomplished without physical force); United States v. Lentz, 383 F.3d 191, 200 (4th Cir.\\n2004) (inveigled the victim to cross state lines).\\n\\n None of these decisions involves kidnapping by unlawfully “confining” the victim, and\\nthus I do not discuss them.\\n 79\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 80 of 80\\n\\n\\nCourt have cautioned against the use of “legal imagination” to devise highly\\n\\nimprobable ways to commit a crime that would render it non-forceful. See\\n\\nMoncrieffe v. Holder, 569 U.S. 184, 191, 133 S. Ct. 1678, 1684-85 (2013); United\\n\\nStates v. Vail-Bailon, 868 F.3d 1293, 1306-07 (11th Cir. 2017) (en banc). 19\\n\\n V. CONCLUSION\\n\\n For these reasons, I would affirm Gillis’s § 373 solicitation conviction and\\n\\nthus respectfully dissent from Section V. I fully concur in Sections I through IV.\\n\\n\\n\\n\\n 19\\n Indeed, the real-world examples of kidnapping in this Circuit unquestionably involve\\nuses of force capable of causing physical pain and injury to the victim. See, e.g., United States v.\\nLewis, 115 F.3d 1531, 1533 (11th Cir. 1997) (defendant “kidnapped” victim by beating her into\\nunconsciousness before placing her in his car and driving across state lines); United States v.\\nAdams, 83 F.3d 1371, 1372 (11th Cir. 1996) (husband “kidnapped” wife by attempting to force\\nher into his car, then shooting her when she broke free); United States v. Pinion, 4 F.3d 941, 942\\n(11th Cir. 1993) (defendant “abducted” 12-year-old victim at gunpoint and held her for days,\\nsometimes physically restraining her or threatening her with the handgun); United States v.\\nDuncan, 855 F.2d 1528, 1529 (11th Cir. 1988) (defendant “abducted” victim by grabbing her at\\nknifepoint and forcing her to drive away with him in her car).\\n\\n The majority opinion also suggests a hypothetical kidnapping of an infant by a\\ngrandparent. But the kidnapping statute expressly excludes parental kidnapping by a non-\\ncustodial parent, 18 U.S.C. § 1201(a), and this grandparent hypothetical is an improbable\\nprosecution too. I have located no grandparent prosecutions for federal kidnapping in such\\ncircumstances, nor do the parties or the majority cite any.\\n 80\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4438007/\", \"author_raw\": \"HULL, Circuit Judge, concurring\"}]}"},"judge1":{"kind":"string","value":"JILL PRYOR"},"judge2":{"kind":"string","value":"ANDERSON"},"judge3":{"kind":"string","value":"HULL"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JILL PRYOR\": \", Circuit\", \"ANDERSON\": \", Circuit\", \"HULL\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":2,"string":"2"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":1,"string":"1"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4660754/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Dane Gillis\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-09-13\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: Yes\nAdditional notes: \n\n[CASE_TEXT]\nCase: 16-16482 Date Filed: 09/13/2019 Page: 1 of 80\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 16-16482\n ________________________\n\n D.C. Docket No. 6:15-cr-00226-CEM-GJK-1\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n\n versus\n\nDANE GILLIS,\n\n Defendant-Appellant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n ________________________\n\n (September 13, 2019)\n\nBefore JILL PRYOR, ANDERSON, and HULL, Circuit Judges.\n\nPER CURIAM:\n\n After a jury trial, Defendant Dane Gillis appeals his convictions for:\n\n(1) attempting to knowingly induce or entice a minor to engage in sexual activity,\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 2 of 80\n\n\nin violation of 18 U.S.C. § 2422(b) (Count 1); (2) solicitation of another to commit\n\nthe crime of federal kidnapping under 18 U.S.C. § 1201(a), in violation of 18\n\nU.S.C. § 373 (Count 2); and (3) knowingly transmitting a communication\n\ncontaining a threat to kidnap, in violation of 18 U.S.C. § 875(c) (Count 3). On\n\nappeal, Gillis argues that (1) the government failed to present sufficient evidence to\n\nsupport his § 2422(b) conviction in Count 1, and (2) the district court deprived him\n\nof his constitutional right to present a defense by prohibiting the testimony of his\n\nproposed expert witnesses. Gillis also contends that his § 373 solicitation\n\nconviction in Count 2 must be vacated because § 1201(a) kidnapping does not\n\ncategorically satisfy the use-of-force element in § 373.\n\n After careful review of the record and the parties’ briefs, and with the\n\nbenefit of oral argument, we affirm in part and reverse in part. We first recount the\n\nevidence and procedural history in this case.\n\n I. TRIAL EVIDENCE\n\n The three charges arose from Gillis’s online communications with an\n\nundercover agent from September 1-16, 2015. These communications involved\n\ntwo separate intended victims: (1) M.O., Gillis’s coworker; and (2) the undercover\n\nagent’s fictional 11-year-old daughter.\n\n In late August 2015, Gillis posted an ad on the Orlando, Florida, “personals”\n\nsection of the website Craigslist under the “casual encounters” subsection. The ad\n\n 2\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 3 of 80\n\n\nstated: “Looking for a guy or a group who [are] into extremely taboo scenes. Hi\n\nrisk and reward for the right sadistic Pervert.”\n\n On September 1, 2015, Gillis’s ad caught the attention of Special Agent\n\nRodney Hyre, with the Federal Bureau of Investigation’s (“FBI”) Violent Crimes\n\nAgainst Children Task Force. Agent Hyre was reviewing ads on Craigslist to\n\nidentify individuals who might be soliciting sexual activity with children. Posing\n\nundercover as the father of an 11-year-old girl, Agent Hyre replied to Gillis’s ad.\n\nAgent Hyre identified himself as a “40 yo[] dad perv with 11 yo daughter” who\n\nwas interested in meeting “like minding people.”\n\n Shortly thereafter, Gillis, who at the time was 58 years old, responded, “Tell\n\nme more . . . i know a 40 yo that needs to be schooled.” Gillis then sent Agent\n\nHyre a picture of victim M.O. and asked “Any pics?” In response, Agent Hyre\n\nsent Gillis a photograph of his supposed daughter (actually a childhood photograph\n\nof a fellow law enforcement officer), with the message “sweet for 11. don’t you\n\nthink.” Over the next two and a half weeks, Gillis and Agent Hyre carried on a\n\nconversation in which they discussed (1) a plan to kidnap and rape Gillis’s\n\ncoworker M.O., and (2) a plan for Gillis to meet and engage in sexual activity with\n\nAgent Hyre’s fictional 11-year-old daughter.\n\n Regarding the kidnapping plan, Gillis told Agent Hyre that he was “looking\n\nto snag [M.O.] and use her a[s] a sex slave.” During the course of the\n\n 3\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 4 of 80\n\n\nconversation, Gillis sent Hyre three more pictures of M.O. and explained that M.O.\n\nwas his coworker, that she was “unwilling and unknowing,” and that kidnapping\n\nher would require “some strategic planning . . . manpower etc.”\n\n Gillis stated that the kidnapping would have to take place early in the\n\nmorning, around 4:30 a.m., because of his and M.O.’s respective work schedules.\n\nGillis asked Agent Hyre if he had any friends, specifically “someone with\n\nexperience,” that would be interested in assisting with the kidnapping plot. Gillis\n\nexplained that they would “[n]eed help,” “a van,” and “a place to keep [M.O.] for\n\nat least 24 hours,” and recommended that they “hood and[/]or blindfold her” and\n\nwear masks themselves. Gillis described the types of sexual acts he wanted to\n\nperform on M.O. and described her as “a goody 2 shoes flirt that NEEDS to be\n\ntaught a lesson.” Gillis told Agent Hyre that he was “open to any ‘ending’\n\nscenario when it [comes] to her.”\n\n Regarding the minor daughter, Gillis told Agent Hyre early on in the\n\nconversation that he would “love to meet [Agent Hyre’s] girl” and asked when he\n\ncould meet her. At one point during the conversation, Agent Hyre asked Gillis for\n\nclarification about whether Gillis was “interested in my 11 yo girl or just older,” to\n\nwhich Gillis responded, “Right now im only interested in your 11 yo . . . the other\n\nwe can talk about.” As their plans to meet progressed, Gillis asked Agent Hyre\n\nwhat types of sexual acts the daughter would be willing to perform. When Agent\n\n 4\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 5 of 80\n\n\nHyre told Gillis that “[s]he will do whatever you say” and asked what Gillis would\n\nlike to do to the girl, Gillis told Hyre that he would like to do “a little of\n\neverything,” including oral sex and vaginal penetration.\n\n Gillis and Hyre initially planned to meet on September 10, 2015, but Gillis\n\nbacked out at the last minute. The following day, Agent Hyre reached out to Gillis\n\nagain, and they resumed discussions about both the plan to kidnap M.O. and the\n\nplan for Gillis to have sex with Agent Hyre’s fictional daughter. Gillis explained\n\nthat he backed out of the first meeting with Agent Hyre and the daughter because\n\nhe was “a little nervous,” having “[n]ever been with a young one” before, and was\n\nconcerned that Agent Hyre might be setting him up. Agent Hyre reassured Gillis\n\nthat he was not being set up, and they then planned a second rendezvous in which\n\nGillis and Agent Hyre would meet first to “show we are real” and then Agent Hyre\n\nwould take Gillis back to his house to meet the fictional daughter.\n\n As they were planning this second meeting, Gillis asked Agent Hyre seven\n\ntimes for more pictures of the daughter and requested that Agent Hyre dress her in\n\n“a short skirt no underwear” for their meeting. When Agent Hyre sent Gillis a\n\nsecond picture, Gillis commented: “Looks [like] she has some tasty little titties . . .\n\nis she still all smooth down below?” Ultimately, they arranged to meet at a Gander\n\nMountain parking lot in Lake Mary, Florida—about an hour’s drive from Gillis’s\n\nhome in Leesburg, Florida—on September 16, 2015.\n\n 5\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 6 of 80\n\n\n On the day of this second planned meeting, Gillis drove to the Gander\n\nMountain parking lot in Lake Mary. Another FBI agent posed as the 11-year-old’s\n\nfather and waited in a tan Buick, while Agent Hyre and a third agent conducted\n\nsurveillance from the other side of the parking lot. Gillis flashed his headlights,\n\nand the agent posing as the father tapped his brake lights. After approaching\n\nGillis’s car and confirming his identity, the agent asked him, “Do you want to go to\n\nthe house?” and Gillis answered, “Sure.” The agents then arrested Gillis and\n\nadvised him of his constitutional rights under Miranda v. Arizona, 384 U.S. 436,\n\n86 S. Ct. 1602 (1966). Gillis waived his rights and agreed to talk to the agents.\n\n In a post-Miranda interview, Gillis admitted: (1) that he had been emailing\n\nwith the father of an 11-year-old girl; (2) that those conversations centered on his\n\nhaving sex with the daughter; and (3) that he had driven an hour from Leesburg for\n\nno other reason than to “have sex with the little girl.” Gillis admitted that “for\n\napproximately the last two years” he had “fantasized about having sex with\n\nchildren.” A subsequent search of Gillis’s computer revealed sexually suggestive\n\nphotographs of prepubescent girls and his internet search history showed that,\n\nsince 2011, Gillis repeatedly sought out pornographic images of preteen girls.\n\n Regarding the plot to kidnap M.O., Gillis first told agents during his\n\npost-Miranda interview that her name was Jamie Johnson and gave a detailed story\n\nabout how she had broken his heart. Gillis admitted he had been posting on\n\n 6\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 7 of 80\n\n\nCraigslist for the past couple of years and had 10 to 20 conversations with people\n\nabout helping him to kidnap and hurt Jamie Johnson. When the agents confronted\n\nGillis with the victim’s true name, Gillis admitted that M.O. was the person he had\n\nbeen sending pictures of and “talking about kidnapping and raping and possibly\n\nkilling.” Gillis explained that they were coworkers but had no romantic\n\nrelationship. Gillis admitted that, two weeks prior, M.O. had rejected him and told\n\nhim she was leaving the restaurant where they worked together and going to work\n\nat another restaurant.\n\n Further investigation revealed that Gillis had been trying for months to find\n\nsomeone to help him kidnap and rape M.O. Between February and August 2015,\n\nwithout M.O.’s knowledge, Gillis engaged in sexually explicit communications\n\nabout kidnapping and raping M.O. and sent photographs of M.O. to numerous\n\nCraigslist users. Additionally, around the time he was messaging Agent Hyre in\n\nSeptember 2015, Gillis conducted several internet searches containing the words\n\n“rape” and “kidnap.”\n\n II. PROCEDURAL HISTORY\n\n In a superseding indictment, a federal grand jury charged Gillis with:\n\n(1) attempting to knowingly induce or entice a minor to engage in sexual activity,\n\nin violation of 18 U.S.C. § 2422(b) (Count 1); (2) solicitation of another to commit\n\nthe crime of federal kidnapping under 18 U.S.C. § 1201(a), in violation of 18\n\n 7\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 8 of 80\n\n\nU.S.C. § 373 (Count 2); and (3) knowingly transmitting a communication\n\ncontaining a threat to kidnap, in violation of 18 U.S.C. § 875(c) (Count 3). Gillis\n\npled not guilty and the case proceeded to a jury trial.\n\n At trial, the government presented evidence and testimony detailing the facts\n\noutlined above. Gillis then presented several witnesses and testified in his own\n\ndefense. Generally speaking, Gillis testified that his entire online conversation\n\nwith Agent Hyre was merely role-playing and fantasy, and he never actually\n\nintended to do any of the acts he described with respect to either M.O. or the\n\nfictional 11-year-old. Although the district court ruled that Dr. James Herriot,\n\nGillis’s expert witness, could testify about internet communication generally, Gillis\n\nultimately chose not to call him at trial.\n\n The jury found Gillis guilty on all three counts. The district court sentenced\n\nhim to 365 months imprisonment on Count 1, 240 months on Count 2, and 60\n\nmonths on Count 3, all to run concurrently. 1\n\n III. SUFFICIENCY OF THE EVIDENCE\n\n On appeal, Gillis challenges the sufficiency of the evidence to support his\n\n§ 2422(b) conviction in Count 1 for attempting to induce or entice a minor to\n\nengage in sexual activity.2 Gillis argues, among other things, that: (1) his\n\n 1\n Gillis does not raise any sentencing issues on appeal.\n 2\n We review challenges to the sufficiency of the evidence supporting a conviction de\nnovo, viewing the evidence and making all reasonable inferences therefrom in the light most\n 8\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 9 of 80\n\n\nCraigslist advertisement itself evidenced no intent to induce a minor to engage in\n\nsexual activity; (2) Agent Hyre introduced the notion of sex with a minor into the\n\nconversation; (3) Gillis abandoned the first planned meeting with the minor,\n\ndemonstrating an abandonment of any intent to engage in sexual activity with the\n\nminor; and (4) in setting up the second meeting, Gillis only sought to meet with the\n\nfather of the fictional minor to “discuss the possibility of future illicit activity.”\n\n Section 2422(b) proscribes knowing attempts to induce or entice a minor to\n\nengage in sexual activity, stating:\n\n Whoever, using the mail or any facility or means of interstate or foreign\n commerce, . . . knowingly persuades, induces, entices, or coerces any\n individual who has not attained the age of 18 years, to engage in\n prostitution or any sexual activity for which any person can be charged\n with a criminal offense, or attempts to do so, shall be fined under this\n title and imprisoned not less than 10 years or for life.\n\n18 U.S.C. § 2422(b). To prove that a defendant violated § 2422(b) by attempting\n\nto induce a minor to engage in sexual activity, the government must show that the\n\ndefendant (1) had the specific intent to induce a minor to engage in sexual activity,\n\nand (2) took a substantial step toward the commission of that offense. United\n\nStates v. Lee, 603 F.3d 904, 913-14 (11th Cir. 2010); United States v. Yost, 479\n\nF.3d 815, 819 (11th Cir. 2007). This Court has held that a defendant may be\n\n\n\nfavorable to the jury’s verdict. United States v. White, 663 F.3d 1207, 1213 (11th Cir. 2011).\nWe will reverse a guilty verdict only if “no trier of fact could have found guilt beyond a\nreasonable doubt.” Id. (quotation marks omitted).\n 9\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 10 of 80\n\n\nconvicted under § 2422(b) even if he attempted to exploit only a fictitious minor\n\nand communicated only with an adult intermediary. See Lee, 603 F.3d at 912-13;\n\nsee also United States v. Murrell, 368 F.3d 1283, 1286-87 (11th Cir. 2004).\n\n Ample evidence supports Gillis’s conviction on Count 1. At trial, the\n\nevidence showed that Gillis engaged in a two-week online conversation with a\n\nperson he believed to be the parent of a minor daughter, during which he discussed\n\nin detail plans to meet and engage in sexual activity with the daughter. Though\n\nGillis is correct that Agent Hyre initiated discussion of the fictional minor, Gillis’s\n\nresponses as the conversation progressed demonstrated his sexual interest in the\n\ndaughter and intent to induce the daughter, through her father, to engage in sexual\n\nactivity.\n\n Furthermore, Gillis cancelled the first meeting because he was “nervous”\n\nand feared he was being set up, not because he was no longer interested in\n\nengaging in sexual activity with the minor daughter. Indeed, Gillis’s subsequent\n\ncomments to Agent Hyre in planning the second meeting show he remained\n\ninterested in engaging in sexual activity with the daughter and anticipated doing so\n\nafter first meeting the father. And Gillis took a substantial step toward\n\nconsummating that plan when he drove nearly an hour from his home to Lake\n\nMary for that meeting. See Murrell, 368 F.3d at 1288 (defendant’s two-hour travel\n\nto meet a minor for sex was corroborative of criminal intent).\n\n 10\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 11 of 80\n\n\n Other evidence corroborated Gillis’s intent, including (1) Gillis’s admission,\n\nduring his post-Miranda interview, that he traveled to the Gander Mountain\n\nparking lot for the purpose of engaging in sex with a minor, (2) Gillis requested\n\nthat the minor daughter be wearing a particular outfit without underwear, and\n\n(3) the wealth of prepubescent images and search terms found on Gillis’s\n\ncomputer. Although Gillis testified that Agent Hyre’s account of the post-Miranda\n\ninterview was inaccurate and that he had no sexual interest in children, the jury\n\nwas free to disbelieve that testimony and consider it as substantive evidence of his\n\nguilt. United States v. Bacon, 598 F.3d 772, 776 (11th Cir. 2010).\n\n For all of these reasons, we conclude that sufficient evidence supported\n\nGillis’s § 2242(b) conviction in Count 1.\n\n IV. EXPERT WITNESSES\n\n Even if the evidence was sufficient, Gillis alternatively contends that the\n\ndistrict court deprived him of his Fifth and Sixth Amendment rights to present a\n\ndefense on all three counts (1) by limiting the testimony of Dr. Herriot, his expert\n\nwitness, and (2) by prohibiting Dr. Susan Sullivan, his other expert, from testifying\n\nat all. In order to review this claim, we outline the pretrial proffers about the\n\ntestimony of these two expert witnesses and the district court’s rulings thereon.\n\n Prior to trial, Gillis disclosed James W. Herriot, Ph.D., a sexologist, and\n\nSusan Sullivan, Ph.D., a clinical psychologist, as proposed experts on sexual\n\n 11\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 12 of 80\n\n\ncommunication and behavior on the internet and Gillis’s own psychosexual\n\nmakeup, respectively. In separate motions, the government moved to exclude both\n\nexperts’ testimony, and the district court held hearings on both motions.\n\nA. Daubert Hearing as to Dr. Herriot’s Testimony\n\n At the Daubert 3 hearing, Dr. Herriot testified that he had an undergraduate\n\ndegree in computer science from Stanford University and that he earned his Ph.D.\n\nfrom the Institute for Advanced Study of Human Sexuality (“IASHS”) in 1996 and\n\nhad been on the faculty at IASHS ever since. Dr. Herriot stated that he was a\n\nmember of the American College of Sexologists and was certified as a sexologist\n\nthrough that organization. Dr. Herriot explained that he wrote his Ph.D.\n\ndissertation on sexual communication on the internet. As part of his research,\n\nDr. Herriot “analyzed about 20 million keystrokes worth of communication” on\n\n“interactive or nearly interactive forum, like sexual material.”\n\n Dr. Herriot testified that since his dissertation, he had done additional\n\nresearch regarding sexual communications on the internet and had also “kept up\n\nwith the field.” Regarding this additional research, Dr. Herriot stated that he had\n\nconducted “about 100” interviews related to sexual communications on the\n\ninternet. Dr. Herriot opined that there is “much that goes on in sexual\n\ncommunication [on the internet] that’s not obvious at first glance,” and\n\n\n 3\n Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).\n 12\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 13 of 80\n\n\nunderstanding such communications can be counterintuitive. According to\n\nDr. Herriot, “[t]here’s a kind of space between what goes on in our minds and what\n\nwe actually do in real life,” and the internet “opens up an in-between space” where\n\npeople engage in fantasy role playing that involves “a combination of fact and\n\nfiction.” Dr. Herriot further explained that the internet creates a phenomenon\n\ncalled the “online disinhibition effect,” in which a person’s “identity becomes\n\ndecoupled from their . . . online behavior” and they behave differently online than\n\nthey would in the real world.\n\n When asked about Gillis specifically, Dr. Herriot stated that he could not\n\n“divine or know anything about [Gillis’s] motivation” in this case because he is not\n\na psychologist, but could “say . . . something about the overall context” of online\n\ncommunications. On cross-examination, Dr. Herriot admitted that: (1) his\n\ndissertation had never been published in an academic journal; (2) his study was\n\nbased predominantly on internet message-board postings that did not involve real-\n\ntime communication between users; and (3) his paper did not discuss the topic of\n\nrole playing on the internet. Dr. Herriot stated that he later expanded his research\n\nto chat rooms and instant messaging as well, but never published any of his results.\n\nDr. Herriot also admitted that, although he was a “professor” at IASHS, he did not\n\nteach any classes there, had not published any articles on human sexuality, and was\n\nmerely a resource for doctoral students.\n\n 13\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 14 of 80\n\n\n Following the hearing, the district court issued a written order granting in\n\npart the government’s motion to exclude Dr. Herriot’s testimony. The district\n\ncourt noted that Gillis sought to introduce Dr. Herriot’s testimony on two separate,\n\nbut related, topics: (1) “how the internet works and how people are able to\n\ncommunicate and socialize on the internet” and (2) “the internet sub-culture for\n\nfantasy role-playing and sexual communications.” As to the first topic, general\n\ndiscussion of the internet and communication, the district court found that\n\nDr. Herriot was qualified to testify as an expert and that his testimony was reliable\n\nand relevant. The district court therefore permitted Gillis to offer Dr. Herriot’s\n\ntestimony on this topic.\n\n As to the second topic, fantasy role playing and sexual communications\n\nonline, the district court found that Gillis failed to disclose more than “an overview\n\nof the general genre of testimony that Dr. Herriot will offer and assurances that\n\nDr. Herriot has opinions pertinent to that category of inquiry.” The district court\n\nfurther found that although Dr. Herriot based his expertise on social science\n\nresearch and experience, he “provided little information in regards to the\n\ninterviews and studies he conducted,” and his studies were not randomized or peer\n\nreviewed and occurred nearly two decades ago. Similarly, to the extent that Dr.\n\nHerriot purported to rely on “academic literature,” he failed to identify those\n\nsources, and the district court was unable to assess their credibility. In addition,\n\n 14\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 15 of 80\n\n\nDr. Herriot did not specify any single opinion he intended to introduce at trial, and\n\nthe general proposition he intended to offer—that some information people\n\ncommunicate anonymously over the internet is false—was within the common\n\nknowledge of laypersons. The district court therefore precluded Dr. Herriot from\n\ntestifying on the topic of fantasy role playing and sexual communications online.\n\nB. Later Hearing as to Dr. Sullivan’s Testimony\n\n Gillis represented that Dr. Sullivan had “performed a psychosexual\n\nevaluation” of Gillis and would testify about her opinions on Gillis’s\n\n“psychosexual makeup” and “sexual development.” During the hearing, defense\n\ncounsel provided copies of Dr. Sullivan’s expert report to the government and the\n\ndistrict court. However, it does not appear that the report itself was made a part of\n\nthe district court record. Though Dr. Sullivan apparently was available, she did not\n\ntestify at the hearing. Accordingly, we have few details regarding the contents of\n\nDr. Sullivan’s proposed testimony, other than that she would testify about Gillis’s\n\n“psychosexual makeup” and “sexual development.”\n\n At the hearing regarding Dr. Sullivan’s proposed testimony, the government\n\nargued that Gillis’s disclosure of Dr. Sullivan was untimely and inadequate. The\n\ndistrict court expressed concern that Dr. Sullivan’s proposed testimony was based\n\nsolely on her clinical interview with Gillis and would essentially allow Gillis to\n\ntestify through self-serving hearsay without his being subject to cross-examination.\n\n 15\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 16 of 80\n\n\n Gillis responded that, in addition to interviewing him, Dr. Sullivan had also\n\nperformed several widely accepted psychological tests. Gillis also proffered that\n\nDr. Sullivan would testify, based on her evaluation, that Gillis “doesn’t have an\n\ninterest in prepubescent children.” The district court took the government’s\n\nmotion to exclude Dr. Sullivan’s testimony under advisement and allowed the\n\nparties to file supplemental briefing on the issue.\n\n On the first day of trial, the district court granted the government’s motion to\n\nexclude Dr. Sullivan’s testimony. The district court concluded that Dr. Sullivan\n\nwould simply be “relaying what [the] defendant told her,” and that the true purpose\n\nof her proposed testimony was to “present opinion testimony from an expert\n\nconcluding that the defendant did not have the requisite intent to commit the\n\n[enticement] offense” in Count 1 because he was not attracted to prepubescent\n\ngirls.\n\nC. Analysis\n\n Gillis does not argue that the district court abused its discretion in excluding\n\nDr. Sullivan’s testimony and part of Dr. Herriot’s testimony under the Federal\n\nRules of Evidence and Daubert. Rather, Gillis asserts that, even if technically\n\ninadmissible under the rules governing expert testimony, the experts’ testimony\n\nshould have been admitted because it was necessary to negate the subjective intent\n\nelement of all three charged offenses and to rebut the Federal Rule of Evidence\n\n 16\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 17 of 80\n\n\n404(b) evidence of his internet search history. Gillis submits that the excluded\n\nexpert testimony would have placed in context his online communications and\n\nshown he was engaging in fantasy role play and had no intent to do these crimes.\n\nBy not allowing him to present that expert testimony, Gillis contends that the\n\ndistrict court deprived him of his constitutional right to present a defense.\n\n The Constitution grants criminal defendants the implicit right to present\n\nevidence in their favor. United States v. Hurn, 368 F.3d 1359, 1362 (11th Cir.\n\n2004) (citing U.S. Const. amends. V & VI). In evaluating a defendant’s claim that\n\nhis constitutional right to present a defense was violated, we examine (1) whether\n\nthe right was actually violated, and (2) if so, whether that error was harmless\n\nbeyond a reasonable doubt. Id. at 1362-63.\n\n Among other things, a defendant “must generally be permitted to introduce\n\nevidence directly pertaining to any of the actual elements of the charged offense,”\n\nas well as evidence that “could make the existence of one or more of the elements\n\nof the charged offense . . . more or less certain.” Id. at 1363. Notably, this general\n\nprinciple does not give the defendant an “unfettered right to offer testimony that is\n\nincompetent, privileged, or otherwise inadmissible under standard rules of\n\nevidence.” Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 653 (1988). But,\n\n“the fact that a particular rule of evidence requires the exclusion of certain\n\nevidence is not dispositive, as particular applications of a generally valid rule may\n\n 17\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 18 of 80\n\n\nunconstitutionally deny a defendant his rights under the Compulsory Process or\n\nDue Process Clauses.” Hurn, 368 F.3d at 1363 n.2.\n\n Although Gillis does not challenge the district court’s exclusion of his\n\nexperts’ testimony under the Rules of Evidence or Daubert, whether that ruling\n\nwas correct is relevant to whether Gillis’s constitutional right to present a defense\n\nwas violated. Accordingly, we address whether the district court abused its\n\ndiscretion in excluding the testimony of Gillis’s experts before determining\n\nwhether that exclusion violated Gillis’s constitutional rights.\n\n Federal Rule of Evidence 702 governs the admissibility of expert testimony.\n\nFed. R. Evid. 702; United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004)\n\n(en banc). Rule 702 provides:\n\n A witness who is qualified as an expert by knowledge, skill, experience,\n training, or education may testify in the form of an opinion or otherwise\n if:\n\n (a) the expert’s scientific, technical, or other specialized knowledge will\n help the trier of fact to understand the evidence or to determine a\n fact in issue;\n\n (b) the testimony is based on sufficient facts or data;\n\n (c) the testimony is the product of reliable principles and methods; and\n\n (d) the expert has reliably applied the principles and methods to the facts\n of the case.\n\n\n\n\n 18\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 19 of 80\n\n\nFed. R. Evid. 702. In determining whether to admit expert testimony under Rule\n\n702, district courts must consider if: (1) the expert is qualified to give competent\n\ntestimony about the matters he intends to address; (2) the methodology the expert\n\nemployed to reach his conclusions is sufficiently reliable under Daubert; and\n\n(3) the testimony will assist the trier of fact, through the application of scientific,\n\ntechnical, or other specialized expertise, to understand the evidence or determine a\n\nfact in issue. City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th\n\nCir. 1998).\n\n In Daubert, the Supreme Court explained that a district court faced with a\n\nproffer of expert testimony must assess whether the reasoning or methodology\n\nunderlying the testimony is scientifically valid and can properly be applied to the\n\nfacts in issue. Daubert, 509 U.S. at 592-93, 113 S. Ct. at 2796. Many factors may\n\nbear on that inquiry, including: (1) whether the theory or technique has been or can\n\nbe tested; (2) whether the theory or technique has been subjected to peer review\n\nand publication; (3) the known or potential error rate; and (4) whether the theory or\n\ntechnique is widely accepted. Id. at 593-94, 113 S. Ct. at 2796-97. The Supreme\n\nCourt emphasized that the Rule 702 inquiry is “a flexible one,” the ultimate goal of\n\nwhich is to determine the evidentiary relevance and reliability of the proposed\n\nexpert testimony. Id. at 594-95, 113 S. Ct. at 2797.\n\n\n\n 19\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 20 of 80\n\n\n Even if an expert’s proposed testimony satisfies Rule 702 and Daubert, the\n\ntestimony must also comply with other limitations contained in the Rules of\n\nEvidence. Of relevance here, Rule 704(b) provides:\n\n In a criminal case, an expert witness must not state an opinion about\n whether the defendant did or did not have a mental state or condition\n that constitutes an element of the crime charged or of a defense. Those\n matters are for the trier of fact alone.\n\nFed.R.Evid. 704(b). In other words, an expert may not opine on the defendant’s\n\nintent. See United States v. Augustin, 661 F.3d 1105, 1123 (11th Cir. 2011).\n\nHowever, an expert may, consistent with Rule 704(b), give testimony “that\n\nsupports an obvious inference with respect to the defendant’s state of mind if that\n\ntestimony does not actually state an opinion on [the] ultimate issue, and instead\n\nleaves this inference for the jury to draw.” Id. (internal quotations and alteration\n\nomitted).\n\n Here, the district court did not abuse its discretion in excluding Dr. Herriot’s\n\nand Dr. Sullivan’s testimony under Daubert and the evidentiary rules governing\n\nexpert testimony.4 As to Dr. Herriot, the district court thoroughly explained in its\n\n\n 4\n “We review for abuse of discretion the district court’s decisions regarding the\nadmissibility of expert testimony and the reliability of an expert opinion.” Frazier, 387 F.3d at\n1258. “Indeed, the deference that is the hallmark of abuse-of-discretion review requires that we\nnot reverse an evidentiary decision of a district court unless the ruling is manifestly erroneous.”\nId. (internal quotations and citation omitted). “Thus, it is by now axiomatic that a district court\nenjoys considerable leeway in making these determinations.” Id. (internal quotations omitted).\n“[W]e must affirm unless we find that the district court has made a clear error of judgment, or\nhas applied the wrong legal standard.” Id. at 1259.\n\n 20\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 21 of 80\n\n\norder why Dr. Herriot’s proposed testimony about fantasy and role playing in\n\nonline sexual communications did not satisfy Rule 702 and Daubert. Among other\n\nthings, the district court found that: (1) Dr. Herriot’s research was conducted\n\nnearly 20 years ago using a different online medium; (2) his studies were not\n\nrandomized, peer-reviewed, or published; (3) he was not able to specifically\n\nidentify the academic literature on which he purported to base his opinions; (4) he\n\ndid not demonstrate sufficient experience in the field of online sexual\n\ncommunications; and (5) his primary conclusion—that not all communications on\n\nthe internet are truthful—was within the knowledge of laypersons. Given these\n\ninfirmities, we have no trouble concluding the district court properly excluded\n\nDr. Herriot’s proposed testimony about online sexual communications. See\n\nFrazier, 387 F.3d at 1259; Harcros Chems., 158 F.3d at 562.\n\n We likewise have little trouble concluding the district court did not abuse its\n\ndiscretion in excluding Dr. Sullivan’s proposed testimony. See Frazier, 387 F.3d\n\nat 1259. The district court determined that Dr. Sullivan’s proffered opinion that\n\nGillis was not sexually attracted to prepubescent girls was simply a thinly veiled\n\nattempt by the defense to offer an expert opinion that Gillis lacked the requisite\n\nintent for the enticement offense in Count 1. We see no clear error in the district\n\ncourt’s determination that Dr. Sullivan’s proffered testimony would do more than\n\n“leave[ an] inference for the jury to draw,” and instead veered into the\n\n 21\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 22 of 80\n\n\nimpermissible territory of offering an opinion on Gillis’s mental state. See\n\nAugustin, 661 F.3d at 1123 (internal quotation marks omitted); Fed. R. Evid.\n\n704(b).\n\n It is unsurprising, therefore, that Gillis does not contest the admissibility\n\naspect of the district court’s rulings. Accordingly, to show he was deprived of his\n\nconstitutional right to present a defense, Gillis must demonstrate a compelling\n\nreason for making an exception to the expert witness rules in this case to allow the\n\ntwo experts’ testimony. See Knight v. Dugger, 863 F.2d 705, 729 (11th Cir. 1988)\n\n(explaining that a conviction may be reversed based on the exclusion of evidence\n\nwhere there is either a clear error by the trial court in its evidentiary rulings or\n\n“compelling reasons for exceptions” to the rules of evidence). This he has not\n\ndone. Given that the district court did not err in rejecting Dr. Herriot’s and\n\nDr. Sullivan’s testimony, the mere fact that their testimony would have been\n\nhelpful to Gillis’s defense does not provide a compelling reason for admitting that\n\ntestimony despite its failure to satisfy Daubert and the rules of evidence.5 See id.\n\n 5\n Gillis makes much of the Second Circuit’s decision in United States v. Joseph, 542 F.3d\n13, 21 (2d Cir. 2008), abrogated in part on other grounds as recognized in United States v.\nFerguson, 676 F.3d 260, 276 n.14 (2d Cir. 2011), in which that Court encouraged the district\ncourt to reconsider the defendant’s request to present testimony from Dr. Herriot. However, the\ndistrict court in that case rejected Dr. Herriot’s testimony primarily on relevancy grounds and\nnot, as here, because it found his proposed testimony to be unreliable. Id. Furthermore, the\nSecond Circuit stated that the reliability of testimony such as Dr. Herriot’s “depends heavily on\nthe knowledge and experience of the expert, rather than the methodology or theory behind it.”\nId. In this case, the district court specifically found that Gillis failed to show Dr. Herriot had\nsufficient experience in the relevant subject matter to qualify him as an expert.\n 22\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 23 of 80\n\n\nThat is particularly so here, where Gillis chose to testify at trial and was able to\n\npresent his fantasy role playing argument to the jury.\n\n V. 18 U.S.C. § 373 CONVICTION\n\n Gillis challenges his Count 2 conviction for solicitation of another to commit\n\nthe crime of federal kidnapping under 18 U.S.C. § 1201(a), in violation of 18\n\nU.S.C. § 373. Section § 373 provides that:\n\n [w]hoever, with intent that another person engage in conduct\n constituting a felony that has as an element the use, attempted use, or\n threatened use of physical force against property or against the person\n of another in violation of the laws of the United States, and under\n circumstances strongly corroborative of that intent, solicits, commands,\n induces, or otherwise endeavors to persuade such other person to\n engage in such conduct, shall be imprisoned . . . .\n\n18 U.S.C. § 373(a) (emphasis added). To be convicted under § 373, the defendant\n\n(1) must solicit another person to “engage in conduct constituting a felony that has\n\nas an element the use, attempted use, or threatened use of physical force,” and\n\n(2) must solicit “such other person to engage in such conduct” under circumstances\n\nstrongly corroborative of that intent.6 Id.\n\n The actual, real-world conduct that Gillis solicited was a kidnapping by\n\nphysical violence, including hooding, blindfolding, and snagging the victim M.O.,\n\nputting her in a van, and then using her as a sex slave. The actual conduct Gillis\n\n\n\n 6\n Although the § 373 statute is entitled “solicitation to commit a crime of violence,” the\ntext of the statute does not use the term “crime of violence.”\n 23\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 24 of 80\n\n\nsolicited clearly “constitut[ed] a felony that ha[d] as an element the use . . . of\n\nphysical force” against the victim. 18 U.S.C. § 373(a). Nonetheless, Gillis\n\ncontends § 373’s elements text permits only the use of the categorical approach,\n\nwhich requires blindness to his actual conduct. Gillis argues our panel has no\n\nchoice in this matter because it is bound by our elements-clause precedent in\n\nUnited States v. McGuire, 706 F.3d 1333 (11th Cir. 2013). 7\n\n More specifically, Gillis contends that: (1) our McGuire precedent holds that\n\nthe text of the elements clause in 18 U.S.C. § 924(c) requires that we apply the\n\ncategorical approach; (2) the text of § 373 has an identical elements clause, which\n\nmeans McGuire requires the categorical approach here too; (3) the elements clause\n\nin § 373 modifies “felony,” not “conduct”; (4) under the categorical approach, we\n\nmust look to the least culpable acts by which § 1201(a) federal kidnapping can be\n\ncommitted; (5) the least culpable act of the § 1201(a) federal kidnapping Gillis\n\nsolicited is “confinement”; and (6) kidnapping by confinement can be\n\naccomplished without the use, attempted use, or threatened use of physical force.8\n\nSee Moncrieffe v. Holder, 569 U.S. 184, 190-91, 133 S. Ct. 1678, 1684 (2013).\n\n\n 7\n For discussion of McGuire’s subsequent treatment see infra note 10.\n 8\n Notably, the § 1201(a) statute also prohibits kidnapping by “inveiglement” or “decoy.”\nAlthough Gillis does not argue that those are the least culpable acts for purposes of his case we\nconsider this legal question de novo. See Splunge v. Shoney’s, Inc., 97 F.3d 488, 492 n.2 (11th\nCir. 1996) (“Stipulations to pure questions of law are of course not binding on courts.” (citation\nomitted)).\n 24\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 25 of 80\n\n\n The government disagrees and argues a conduct-based approach applies\n\nbecause: (1) the § 373 text twice refers to the “conduct” the defendant was\n\nsoliciting someone to engage in; (2) even though the elements clause follows\n\n“felony,” the § 373 text refers to “conduct constituting a felony,” not “an offense\n\nthat is a felony” as in § 924(c)(3)(A); (3) § 373 requires consideration of the actual\n\nconduct that the defendant solicited and only then asks if that conduct constitutes a\n\nfelony that has physical force as an element; and (4) the look-back problems of\n\nassessing a prior conviction that spawned the categorical approach do not apply\n\nhere.\n\n As a threshold issue, we must decide whether, under the prior panel\n\nprecedent rule, McGuire binds us to apply the categorical approach to the text of\n\n§ 373. To do that, we review McGuire in detail.\n\nA. Our McGuire Precedent\n\n The defendant in McGuire was convicted of two crimes: (1) attempting to\n\nset fire to, damage, destroy, disable, or wreck an aircraft, in violation of 18 U.S.C.\n\n§ 32(a)(1); and (2) using a firearm during and in relation to that crime of violence,\n\nin violation of 18 U.S.C. § 924(c)(1)(A). McGuire, 706 F.3d at 1335. The\n\ndefendant fired a single shot from a handgun in the general direction of an airborne\n\npolice helicopter. Id. McGuire did not involve a prior conviction and a look-back\n\nproblem. On appeal, the defendant challenged his § 924(c) firearm conviction,\n\n 25\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 26 of 80\n\n\ncontending that his contemporaneous predicate § 32(a)(1) offense was not\n\ncategorically a crime of violence as defined in § 924(c)(3). Id. at 1336-37.\n\n The McGuire Court decided two legal questions: (1) whether the text of\n\n§ 924(c)(3)(A)’s elements clause required use of the categorical approach; and\n\n(2) if so, whether all plausible versions of a § 32(a)(1) predicate conviction\n\ncategorically involve the use, attempted use, or threatened use of physical force\n\nunder § 924(c)(3)(A) and thereby qualify as a crime of violence. See id. at 1336-\n\n38.\n\n As background, § 924(c)(3) defines a crime of violence as “an offense that is\n\na felony” that either: “(A) has as an element the use, attempted use, or threatened\n\nuse of physical force against the person or property of another” (the elements\n\nclause); or “(B) that by its nature, involves a substantial risk that physical force\n\nagainst the person or property of another may be used in the course of committing\n\nthe offense” (the residual clause). 9 18 U.S.C. § 924(c)(3)(A)-(B).\n\n As to § 924(c)(3)(A)’s elements clause, the McGuire panel held that it must\n\n“employ th[e] categorical approach because of the statute’s terms: It asks whether\n\nMcGuire committed ‘an offense’ that ‘has as an element the use, attempted use, or\n\n\n\n 9\n Unlike the Armed Career Criminal Act (“ACCA”) and 18 U.S.C. § 924(c), the § 373\ntext has no residual clause language. Compare 18 U.S.C. § 924(c)(3)(B) and 18 U.S.C.\n§ 924(e)(2)(B)(ii), with 18 U.S.C. § 373(a).\n\n 26\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 27 of 80\n\n\nthreatened use of physical force against the person or property of another.’”\n\nMcGuire, 706 F.3d at 1336 (first emphasis added). The McGuire panel reasoned\n\nthat whether a § 32(a)(1) conviction is a crime of violence within the meaning of\n\n§ 924(c)(3)(A)’s elements clause is “a question of law . . . that we must answer\n\n‘categorically’—that is, by reference to the elements of the offense, and not the\n\nactual facts of McGuire’s conduct.” Id.10\n\n In McGuire, the Court also explained that, even though McGuire’s conduct\n\nof “firing a gun at a flying helicopter is unmistakably violent, we must ask whether\n\n\n\n 10\n In addition to holding that § 924(c)(3)(A)’s elements clause requires the categorical\napproach, McGuire also indicated that § 924(c)(3)(B)’s residual clause required the categorical\napproach. 706 F.3d at 1336–37. This court, sitting en banc, overruled McGuire to the extent that\nit held the residual clause required the categorical approach. Ovalles v. United States, 905 F.3d\n1231, 1234 (11th Cir. 2018) (en banc) (“[W]e hold that § 924(c)(3)(B) prescribes a conduct-\nbased approach, pursuant to which the crime-of-violence determination should be made by\nreference to the actual facts and circumstances underlying a defendant’s offense. To the extent\nthat our earlier decision in United States v. McGuire holds otherwise, it is overruled.” (citation\nomitted)). The Supreme Court, however, recently abrogated Ovalles. See United States v.\nDavis, ___ U.S. ___, ___, 139 S. Ct. 2319, 2325-33 (2019) (holding that § 924(c)(3)(B)’s\nresidual clause mandates the categorical approach and is unconstitutionally vague).\n\n This case concerns language similar to § 924(c)(3)(A)’s elements clause. McGuire’s\ndetermination that § 924(c)(3)(A)’s elements clause requires the categorical approach was\nunaffected by Ovalles and only reinforced by dicta in Davis. The Government conceded in\nDavis that the categorical approach would apply to § 924(c)(3)(A)’s elements clause. See Davis,\n___ U.S. at ___, 139 S. Ct. at 2328; id. at ___, 139 S. Ct. at 2339 (Kavanaugh, J., dissenting).\nMoreover, the Court indicated in dicta that it agreed that the elements clause called for the\ncategorical approach. Id. at 2328 (majority opinion) (“Consider the word ‘offense.’ It’s true that\n‘in ordinary speech,’ this word can carry at least two possible meanings. It can refer to ‘a generic\ncrime, say, the crime of fraud or theft in general,’ or it can refer to ‘the specific acts in which an\noffender engaged on a specific occasion.’ . . . [E]veryone agrees that, in connection with the\nelements clause, the term ‘offense’ carries the first ‘generic’ meaning. . . . The language of the\nresidual clause itself reinforces the conclusion that the term ‘offense’ carries the same ‘generic’\nmeaning throughout the statute.”).\n 27\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 28 of 80\n\n\nthe crime, in general, plausibly covers any non-violent conduct.” Id. at 1337.\n\nAfter concluding that all plausible applications of the statute required the use,\n\nattempted use, or threatened use of physical force, the Court held that the\n\ndefendant’s § 32(a)(1) conviction categorically qualified as a crime of violence\n\nunder § 924(c)(3)(A)’s elements clause. Id.\n\nB. Prior Panel Precedent Rule\n\n Under our prior panel precedent rule, we are bound to follow a prior panel’s\n\nholding unless and until it is overruled or undermined to the point of abrogation by\n\nan opinion of the Supreme Court or of this Court sitting en banc. United States v.\n\nArcher, 531 F.3d 1347, 1352 (11th Cir. 2008). The prior panel precedent rule\n\napplies regardless of whether the later panel believes the prior panel’s opinion to\n\nbe correct, and there is no exception to the rule where the prior panel failed to\n\nconsider arguments raised before a later panel. See Smith v. GTE Corp., 236 F.3d\n\n1292, 1301-03 (11th Cir. 2001) (“[W]e categorically reject any exception to the\n\nprior panel precedent rule based upon a perceived defect in the prior panel’s\n\nreasoning or analysis as it relates to the law in existence at that time.”). To\n\noverrule or abrogate a prior panel’s decision, the subsequent Supreme Court or en\n\nbanc decision “must be clearly on point” and must “actually abrogate or directly\n\nconflict with, as opposed to merely weaken, the holding of the prior panel.”\n\nUnited States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (internal quotation\n\n 28\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 29 of 80\n\n\nmarks omitted).\n\n Here, there is no intervening Supreme Court or en banc decision to\n\nconsider. 11 Rather, the narrow question is whether our own McGuire panel\n\nprecedent binds us in this case. Our prior panel precedent rule “applies only to\n\nholdings, not dicta” in our prior opinions. United States v. Birge, 830 F.3d 1229,\n\n1232 (11th Cir. 2016). “The holding of a case comprises both the result of the case\n\nand those portions of the opinion necessary to that result.” United States v.\n\nCaraballo-Martinez, 866 F.3d 1233, 1244 (11th Cir.) (internal quotation marks\n\nomitted), cert. denied, 138 S. Ct. 566 (2017). But “[w]e have pointed out many\n\ntimes that regardless of what [our] court says in its opinion, the decision can hold\n\nnothing beyond the facts of that case.” Edwards v. Prime, Inc., 602 F.3d 1276,\n\n1298 (11th Cir. 2010) (collecting cases).\n\n In contrast, dicta is “a statement that neither constitutes the holding of a\n\ncase, nor arises from a part of the opinion that is necessary to the holding of the\n\ncase.” Black v. United States, 373 F.3d 1140, 1144 (11th Cir. 2004). Stated\n\nanother way, “dicta is defined as those portions of an opinion that are not necessary\n\nto deciding the case then before us.” Caraballo-Martinez, 866 F.3d at 1244\n\n(quoting Kaley, 579 F.3d at 1253 n.10); Obiter Dictum, Black’s Law Dictionary\n\n\n\n 11\n As noted previously, supra note 10, McGuire’s determination with respect to the\nelements clause was not affected by Ovalles and was only reinforced by Davis.\n 29\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 30 of 80\n\n\n(10th ed. 2014) (explaining that a statement is dictum if it is “unnecessary to the\n\ndecision in the case”); Bryan A. Garner, et al., The Law of Judicial Precedent 46\n\n(2016) (“Generally, a dictum is a statement in a judicial opinion that is unnecessary\n\nto the case’s resolution.”). “[W]e are not required to follow dicta contained in our\n\nown precedents.” McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1077 (11th\n\nCir. 1996).\n\nC. McGuire’s Binding Force in this Case\n\n We first conclude that McGuire’s categorical approach ruling—that the text\n\nof § 924(c)(3)(A)’s elements clause requires use of the categorical approach in\n\nanalyzing whether a felony offense qualifies as a crime of violence—was\n\n“necessary to [the] result,” and therefore part of the holding, in that case. See\n\nMcGuire, 706 F.3d at 1336-37; Caraballo-Martinez, 866 F.3d at 1244. The use of\n\nthe categorical approach in McGuire was not dicta because McGuire ruled that\n\n§ 924(c)(3)(A)’s statutory text required that it apply the categorical approach to\n\ndetermine whether a § 32(a)(1) conviction qualified as a crime of violence.\n\nMcGuire, 706 F.3d at 1336-38. At least in another § 924(c)(3)(A) case, it is clear\n\nthat McGuire’s use of the categorical approach is binding in evaluating the\n\n\n\n\n 30\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 31 of 80\n\n\npredicate crime. See Caraballo-Martinez, 866 F.3d at 1244; Archer, 531 F.3d at\n\n1352.\n\n The more precise and decisive question here, though, is whether McGuire’s\n\nholding—that § 924(c)(3)(A)’s statutory text requires a categorical approach—\n\nbinds us in this case, which arises under § 373. For several reasons, we conclude\n\nthat it does. Let’s compare the statutory text of § 924(c)(3)(A) and § 373\n\nside-by-side, as follows:\n\n § 924(c)(1)(A) & (c)(3)(A) § 373 makes it unlawful\n makes it unlawful to use or to solicit another with the\n carry a firearm during and intent that the other\n in relation to a crime of person “engage in\n violence, defined as “an conduct constituting a\n offense that is a felony and felony that has as an\n (A) has as an element the element the use,\n use, attempted use, or attempted use, or\n threatened use of physical threatened use of physical\n force against the person or force against property or\n property of another.” against the person of\n another . . . , and under\n circumstances strongly\n corroborative of that\n intent, solicits,\n commands, induces, or\n otherwise endeavors to\n persuade such other\n person to engage in such\n conduct.”\n\n Both statutes use this same phrase: “a felony” that “has as an element the\n\nuse, attempted use, or threatened use of physical force.” Compare 18 U.S.C.\n\n\n 31\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 32 of 80\n\n\n§ 924(c)(3)(A), with 18 U.S.C. § 373(a). Section 373 was enacted as part of the\n\nComprehensive Crime Control Act of 1984, where the term “crime of violence”\n\nfinds its origins.12 Pub. L. 98-473, § 1003(a), 98 Stat. 1976, 2138 (1984). Nearly\n\nidentical elements clauses within § 924(c)(3)(A) and § 16’s definitions of “crime\n\nof violence,”13 which also find their origins in the Comprehensive Crime Control\n\nAct of 1984, have been interpreted to require the categorical approach. See United\n\nStates v. Davis, ___ U.S. ___, ___, 139 S. Ct. 2319, 2327-28 (2019) (§ 924(c));\n\nLeocal v. Ashcroft, 543 U.S. 1, 6, 125 S. Ct. 377, 381 (2004) (§ 16). Because “we\n\nnormally presume that the same language in related statutes carries a consistent\n\n\n\n\n 12\n The Comprehensive Crime Control Act not only added § 373 but also amended\n§ 924(c) to add the term “crime of violence” and enacted 18 U.S.C. § 16’s definition of “crime of\nviolence,” which contains a nearly identical elements clause. See Pub. L. 98-473, § 1003(a), 98\nStat. 1976, 2138 (1984) (codified as amended at 18 U.S.C. § 373); id. § 1001(a), 98 Stat. at 2136\n(codified at 18 U.S.C. § 16); id. § 1005(a), 98 Stat. at 2138 (codified as amended at 18 U.S.C.\n§ 924(c)). Until § 924(c)’s subsequent amendment in 1986 to include a definition for crime of\nviolence, which included its elements clause, its use of “crime of violence” in the 1984\namendments was interpreted to refer to § 16’s general definition. See Davis, ___ U.S. at ___,\n139 S. Ct. at 2330–31 (“The statutory term ‘crime of violence’ traces its origins to the\nComprehensive Crime Control Act of 1984. There, Congress enacted the definition of ‘crime of\nviolence’ in § 16. It also ‘employed the term “crime of violence” in numerous places in the Act,’\nincluding in § 924(c). At that time, Congress didn’t provide a separate definition of ‘crime of\nviolence’ in § 924(c) but relied on § 16’s general definition. The two statutes, thus, were\noriginally designed to be read together.” (citations omitted)).\n 13\n The elements clause in § 16 provides in relevant part:\n\n The term “crime of violence” means –\n\n (a) an offense that has as an element the use, attempted use, or threatened\n use of physical force.\n\n 32\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 33 of 80\n\n\nmeaning,” Davis, ___ U.S. at ___, 139 S. Ct. at 2329, we construe § 373 to\n\nsimilarly require the categorical approach.\n\n While, as the government and our dissenting colleague point out, there are\n\nsome textual differences between § 373 and § 924(c)(3), we cannot find them\n\nsufficient for a panel to be able to write around our prior panel precedent in\n\nMcGuire, especially because both § 924(c)(3) and § 373 address contemporaneous\n\nconduct, not prior convictions. It is true that § 373 includes use of the word\n\n“conduct” whereas § 924(c)(3) does not. Compare § 373 (referencing “[w]hoever,\n\nwith intent that another person engage in conduct constituting a felony that has as\n\nan element”), with § 924(c)(3) (referring to commission of an offense that is a\n\nfelony and “has as an element”). However, there is little difference between\n\nsoliciting another to commit a felony that has as an element the use, attempted use,\n\nor threatened use of physical force and soliciting another to “engage in conduct\n\nconstituting a felony that has as an element the use, attempted use, or threatened\n\nuse of physical force.” The only difference is that the reference to the criminalized\n\nconduct in the former is implicit while the reference to conduct in the latter is\n\nexplicit. If Congress intended § 373 to be construed differently from § 924(c) and\n\n§ 16, we do not believe Congress would have used language which conveys almost\n\nthe same meaning as language which clearly calls for the categorical approach.\n\nMoreover, § 373 does not refer to just any conduct; it refers specifically to\n\n 33\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 34 of 80\n\n\n“conduct constituting a felony that has as an element the use . . . of physical\n\nforce.” As noted above, established law in Davis and Leocal construe the\n\nlanguage—“felony that has as an element the use . . . of physical force”—as\n\nrequiring the categorical approach. Thus, § 373 does not refer to just any\n\n“conduct”; rather, it refers to “conduct” that constitutes a felony that requires a\n\ncategorical approach. We are not persuaded that the textual difference between\n\n§ 373 and § 924(c) indicates a departure from the categorical approach\n\ntraditionally required when considering an elements clause.\n\n Strong reasons based in the canons of statutory construction persuade us that\n\nwe cannot plausibly construe § 373 to avoid the categorical approach and permit\n\nconsideration only of the conduct charged in the particular case, as the dissent\n\nproposes. First, as noted above, the canon—presuming that language carries the\n\nsame meaning as does the same language in related statutes—and the fact that\n\n§ 373 was enacted as part of the Comprehensive Crime Control Act of 1984 along\n\nwith amendments to § 924(c) and the enactment of § 16—all including nearly\n\nidentical elements clauses—indicate that Congress intended § 373 should also be\n\nconstrued as requiring a categorical approach as do § 924(c) and § 16. Second, the\n\nphrase “that has as an element” modifies the immediately preceding word\n\n“felony”—not the more remote word “conduct.” See Antonin Scalia & Bryan A.\n\nGarner, Reading Law: The Interpretation of Legal Texts 152 (2012) (“When the\n\n 34\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 35 of 80\n\n\nsyntax involves something other than a parallel series of nouns or verbs, a\n\nprepositive or postpositive modifier normally applies only to the nearest reasonable\n\nreferent.”). Third, the text of § 373 makes it absolutely clear that the elements\n\nclause—“that has as an element” —modifies the immediately preceding word\n\n“felony” and not the more remote word “conduct.” Conduct (i.e., underlying facts)\n\ncannot have constituent elements; only a felony’s legal definition can.\n\n “Elements” are the “constituent parts” of a crime’s legal definition—\n the things the “prosecution must prove to sustain a conviction.” Black’s\n Law Dictionary 634 (10th ed. 2014). At a trial, they are what the jury\n must find beyond a reasonable doubt to convict the defendant, see\n Richardson v. United States, 526 U.S. 813, 817, 119 S. Ct. 1707, 143\n L.Ed.2d 985 (1999); and at a plea hearing, they are what the defendant\n necessarily admits when he pleads guilty, see McCarthy v. United\n States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L.Ed.2d 418 (1969). Facts,\n by contrast, are mere real-world things—extraneous to the crime’s legal\n requirements. (We have sometimes called them “brute facts” when\n distinguishing them from elements. Richardson, 526 U.S., at 817, 119\n S. Ct. 1707.) They are “circumstance[s]” or “event[s]” having no “legal\n effect [or] consequence”: In particular, they need neither be found by a\n jury nor admitted by a defendant. Black’s Law Dictionary 709.\n\nMathis v. United States, ___ U.S. ___, ___, 136 S. Ct. 2243, 2248 (2016). Thus,\n\nwe construe § 373’s phrase “felony that has as an element the use, attempted use,\n\nor threatened use of physical force” to refer categorically to the felony in question.\n\nThe categorical approach permits courts to look only to statutory definitions of the\n\ncrime. See Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct. 2143, 2160\n\n(1990). Of course, when the underlying crime arises from a divisible statute (a\n\nstatute defining multiple crimes by listing multiple, alternative elements), the\n 35\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 36 of 80\n\n\nmodified categorical approach may be applied, which permits courts to consult\n\nShepard 14 documents to determine which version of the underlying crime is at\n\nissue. See Mathis, ___ U.S. at ___, 136 S. Ct. at 2245; see also infra Section V.D.\n\n The dissent proposes a novel analysis. The dissent proposes, in effect, to\n\napply the modified categorical approach to an indivisible statute.15 Gillis is\n\ncharged with soliciting another to commit kidnapping under 18 U.S.C. §1201(a).\n\nAs we later demonstrate, see infra Section V.D., § 1201(a) is an indivisible statute,\n\nwhich the dissent effectively concedes. The dissent proposes to consider the actual\n\nconduct with which Gillis was charged, as evidenced by Shepard documents, and\n\nthen determine “whether that solicited ‘conduct’ constitutes a felony that has the\n\nuse, attempted use, or threatened use of force as an element.” The dissent’s\n\napproach necessarily treats the underlying felony at issue—here, § 1201(a)—as\n\ndivisible by looking to Shepard documents to rule out the indivisible means\n\n\n\n\n 14\n Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005).\n 15\n The dissent consults the indictment and jury instructions to rule out the indivisible\nmeans “inveiglement” and “decoy” from its analysis. The modified categorical approach—i.e.,\nthe use of Shepard documents like indictments and jury instructions to determine which of\nseveral alternative elements were necessarily involved in the underlying felony—is permissible\nonly in divisible statutes. See Mathis, ___ U.S. at ___, 136 S. Ct. at 2248-49. When the statute\nat issue is indivisible, as is § 1201(a), Shepard documents may not be used to determine which of\nseveral alternative means of committing the crime were involved in the underlying felony. See\nid. at ___, 136 S. Ct. at 2253.\n\n 36\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 37 of 80\n\n\n“inveigle” and “decoy” from consideration in step two of its analysis.16 We do not\n\nbelieve this approach to be consistent with Supreme Court precedent. See Mathis,\n\n___ U.S. at ___, 136 S. Ct. at 2253 (“‘[T]he only [use of the modified categorical\n\napproach] we have ever allowed,’ . . . is to determine ‘which element[s] played a\n\npart in the defendant’s conviction.’” (quoting Descamps v. United States, 570 U.S.\n\n254, 260, 263, 133 S. Ct. 2276, 2283, 2285 (2013)) (first and third alterations in\n\noriginal)).17\n\n Although there is some daylight between the § 373 and § 924(c)(3)(A) texts,\n\nthere is not enough for a panel of our Court to chart a new course and depart from\n\n\n\n\n 16\n The dissent does not ultimately decide whether it is proper to consider only Shepard\ndocuments (e.g., the indictment and jury instructions) or the entire trial evidence. But it is clear\nthat the dissent is considering the actual conduct of Gillis, and that is inconsistent with the\ncategorical approach. And the dissent’s actual analysis focuses on kidnapping by unlawful\nconfinement, which relies on the indictment, a Shepard document. That analysis assumes the\nmodified categorical approach, which is impermissible in the context of an indivisible statute like\n§ 1201(a).\n 17\n The dissent highlights that Mathis considered the ACCA, a statute that considers prior\nconvictions rather than current conduct, and submits that this distinction supports its construction\nof § 373. This past term in Davis, however, the Court held that the categorical approach applies\nto § 924(c)—a statute that considers a crime currently before the court, not prior convictions.\nLike § 924(c), § 373 also considers a crime currently before the court. We are thus not\npersuaded by the dissent’s distinction. The dissent also asserts, with no supporting authority, that\nthe Mathis rule—i.e, the use of Shepard documents to rely on a defendant’s actual conduct is\npermissible only in divisible statutes—does not apply to § 373. To the extent the dissent relies\non Mathis involving a prior conviction, the dissent’s position is undetermined by Davis. To the\nextent that the dissent relies on § 373’s explicit reference to “conduct,” we disagree for the\nreasons stated above—i.e., that the mere use of the term “conduct” in § 373 does not persuade us\nthat we can depart from the categorical approach traditionally required when construing these\nelements clauses.\n\n 37\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 38 of 80\n\n\nMcGuire’s categorical approach when applying the elements clause in § 373. 18\n\nTherefore, we conclude that our McGuire precedent binds us to use the categorical\n\n\n 18\n Pursuant to the canons of statutory construction and for the reasons set out above, we\nrespectfully do not believe that § 373 is most plausibly read as our dissenting colleague proposes.\nThe core of the dissent’s position relies upon the fact that § 373 explicitly uses the word\n“conduct” while § 924(c) does not. Contrary to the dissent’s suggestion with respect to the only\ncanon on which it relies, we have not disregarded Congress’s use of the word “conduct” in\n§ 373. Rather, we recognize that § 373 uses the word “conduct” while § 924(c) does not, but we\ndo not believe that difference can bear the weight the dissent places on it. As set forth above,\n§ 373 uses the word “conduct” but carries virtually the same meaning as the corresponding\nsentences in § 924(c) and § 16, both of which clearly evoke the categorical approach. The only\ndifference is that § 924(c) and § 16 only implicitly refer to conduct. Moreover, the reference to\n“conduct” in § 373 specifically references only “conduct constituting a felony that has as an\nelement the use . . . of physical force,”—i.e., “conduct” constituting a felony that requires a\ncategorical approach. In light of the fact that §§ 373, 924(c), and 16 all include the prominent\nand nearly identically worded elements clause that is the hallmark of the categorical approach,\nand in light of the fact that those elements clauses all find their origins in the Comprehensive\nCrime Control Act of 1984, we do not believe that Congress signaled the substantially different\ninterpretation for § 373 that the dissent proposes.\n\n The dissent’s argument that § 373 does not include the word “conviction” or the word\n“offense” has little force in light of the fact that § 373 does use the word “felony.” And the\nstatute refers to a specific kind of felony—i.e., a “felony that has as an element the use . . . of\nphysical force” (that is, a felony that requires a categorical approach.).\n\n Although we reject the dissent’s characterization of our focus as only on “a hypothetical\ndefendant’s imagined conduct,” of course we do focus on “inveigle” and “decoy,” the least\nculpable means of violating § 1201(a). This focus is required by the categorical approach. See\ninfra Section V.D.\n\n Nor does the dissent’s citation to the legislative history of § 373 support its position.\nAlthough the final version of § 373 no longer relied on the definition of “crime of violence” in\n§ 16, it included its own requirement that the “felony” had to have “as an element,” the “use,\nattempted use, or threatened use of physical force”—the very language which established law\nconstrues as requiring the categorical approach.\n\n Under all the circumstances, we conclude that § 373 is most plausibly read as we set\nforth, and not as our dissenting colleague proposes. However, to the extent that there is any\nambiguity left, we believe the rule of lenity would indicate the categorical approach. The rule\n“only applies if, after considering text, structure, history, and purpose, there remains a\n‘grievous ambiguity or uncertainty in the statute,’ such that the Court must simply ‘guess as to\nwhat Congress intended.’” Barber v. Thomas, 560 U.S. 474, 488, 130 S. Ct. 2499, 2508 (2010)\n 38\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 39 of 80\n\n\napproach to determine whether the solicited crime—here, § 1201(a) federal\n\nkidnapping—“has as an element the use, attempted use, or threatened use of\n\nphysical force” against another person or property, as required by § 373.\n\nD. Section 1201(a) Kidnapping\n\n In relevant part, the federal kidnapping statute provides:\n\n Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps,\n abducts, or carries away and holds for ransom or reward or otherwise\n any person, except in the case of a minor by the parent thereof . . . shall\n be punished by imprisonment for any term of years or for life . . . .\n\n18 U.S.C. § 1201(a) (emphasis added). Two elements of § 1201(a) kidnapping are:\n\n(1) unlawfully seizing, confining, inveigling, decoying, kidnapping, abducting, or\n\ncarrying away the victim; and (2) holding the victim for ransom or reward or\n\notherwise. Id.; Chatwin v. United States, 326 U.S. 455, 459, 66 S. Ct. 233, 235\n\n(1946).19\n\n\n\n\n(citations omitted). We do not believe a grievous ambiguity remains, but to the extent it does,\nthe rule of lenity would require an interpretation favorable to Gillis—i.e., an interpretation\ncalling for application of the categorical approach. See Leocal, 543 U.S. at 11 n.8, 125 S.Ct. at\n384 n.8 (applying the rule of lenity in a very similar context.).\n\n 19\n To be convicted of federal kidnapping, the offender’s conduct also must satisfy one of\nthe jurisdictional elements in the statute, such as where the offender (1) willfully transports the\nvictim in interstate or foreign commerce; (2) himself travels in interstate or foreign commerce in\ncommitting or in furtherance of the offense; or (3) uses any means, facility, or instrumentality of\ninterstate or foreign commerce in committing or in furtherance of the offense. 18 U.S.C.\n§ 1201(a)(1). There is no challenge to the fact that the kidnapping conduct Gillis solicited would\nsatisfy one of these jurisdictional elements.\n 39\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 40 of 80\n\n\n In applying the categorical approach to § 1201(a), we must first determine\n\nwhether the statutory phrase “unlawfully seizes, confines, inveigles, decoys,\n\nkidnaps, abducts, or carries away” lists divisible alternative elements defining\n\nseparate kidnapping crimes or is an indivisible list of factual means by which a\n\nsingle kidnapping crime may be committed. If these are alternative elements, then\n\nthe statute is divisible and the modified categorical approach, which permits\n\nconsulting Shepard documents, applies. See Cintron v. U.S. Att’y Gen., 882 F.3d\n\n1380, 1384 (11th Cir. 2018) (citing Descamps, 570 U.S. at 263, 133 S. Ct. at 2281,\n\n2285; Mathis v. United States, ___ U.S. ___, ___, 136 S. Ct. 2243, 2249 (2016)).\n\nIf these are illustrative means, then the statute is indivisible and the categorical\n\napproach, which does not permit consulting Shepard documents, applies. See\n\nMathis, ___ U.S. at ___, 136 S. Ct. at 2253-54; Descamps, 570 U.S. at 258, 133 S.\n\nCt. at 2282; Cintron, 882 F.3d at 1384, 1385 n.6.\n\n In determining whether a statutory provision lists alternative elements or\n\nillustrative means, we consider first the text of the statute, second relevant\n\ndecisional law, and third other evidence such as indictments and jury instructions.\n\nSee Cintron, 882 F.3d at 1385. “If these sources do not ‘speak plainly,’ courts\n\nmust resolve the inquiry in favor of indivisibility.” Id. Here, the text of § 1201(a)\n\nis strongly suggestive of indivisibility. As we explained in Cintron: “If, for\n\nexample, the statute provides for tiered punishments depending on particular\n\n 40\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 41 of 80\n\n\nstatutory alternatives, the alternatives are elements. Conversely, if the statute is\n\n‘drafted to offer “illustrative examples,”’ those examples are means of committing\n\nthe offense, not elements.” Id. at 1385 (quoting and citing Mathis, ___ U.S. at ___,\n\n136 S. Ct. at 2256). The Supreme Court in Mathis described such a statute that\n\nenumerates various factual means of committing a single element:\n\n To use a hypothetical adapted from two of our prior decisions, suppose\n a statute requires use of a “deadly weapon” as an element of a crime\n and further provides that the use of a “knife, gun, bat, or similar\n weapon” would all qualify. Because that kind of list merely specifies\n diverse means of satisfying a single element of a single crime—or\n otherwise said, spells out various factual ways of committing some\n component of the offense—a jury need not find (or a defendant admit)\n any particular item: A jury could convict even if some jurors\n “conclude[d] that the defendant used a knife” while others “conclude[d]\n he used a gun,” so long as all agreed that the defendant used a “deadly\n weapon.”\n\nMathis, ___ U.S. at ___, 136 S. Ct. at 2249 (citing Richardson v. United States,\n\n526 U.S. 813, 817, 119 S. Ct. 1707, 1710 (1999); Descamps, 570 U.S. at 268-69,\n\n133 S. Ct. at 2288-89).\n\n Here, § 1201(a) specifies that whoever “unlawfully seizes, confines,\n\ninveigles, decoys, kidnaps, abducts, or carries away”—while also satisfying the\n\nother elements of the offense—“shall be punished by imprisonment for any term of\n\nyears or for life and, if the death of any person results, shall be punished by death\n\nor life imprisonment.” § 1201(a). These alternative means of establishing the first\n\nelement of kidnapping are “denominated as a single offense” and punished by the\n\n 41\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 42 of 80\n\n\nsame penalty regardless of the means used. The diverse means of satisfying this\n\nelement include several that are nearly synonymous—inveigle and decoy, abduct\n\nand carry away—showing that a jury could convict even if some jurors concluded\n\nthat the defendant “inveigled” while others concluded that he “decoyed,” so long\n\nas all agreed that this first element was established. Accordingly, the text of\n\n§ 1201(a) suggests that the several methods of violating the statute are all factual\n\nmeans of accomplishing “kidnapping” rather than separate elements creating\n\nseveral distinct kidnapping offenses. See Cintron, 882 F.3d at 1385-86; see also\n\nUnited States v. St. Hubert, 909 F.3d 335, 348 (11th Cir. 2018) (determining that\n\n18 U.S.C. § 1951(b)(1)’s definition of “robbery” is indivisible because it sets out\n\nalternative means of committing the offense rather than setting out multiple\n\ndifferent robbery crimes), cert denied, 139 S. Ct. 1394 (2019).\n\n Relevant decisional law similarly suggests that § 1201(a) sets forth\n\nillustrative means and not alternative elements. In United States v. Boone, this\n\nCourt characterized inveigling or decoying “as means of kidnapping under the\n\nstatute,” and used the terms as interchangeable synonyms in describing\n\n“kidnappings accomplished solely by the seduction of victims.” See 959 F.2d\n\n1550, 1557 (11th Cir. 1992) (emphasis added) (internal quotation marks omitted).\n\nWhile we have not previously considered whether this statutory phrase describes\n\nmeans or elements (or, in other words, whether it is indivisible or divisible), the\n\n 42\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 43 of 80\n\n\nonly court to consider the issue has concluded that the statute lists indivisible\n\nmeans. See United States v. Rubio, No. 1:08-CR-297-LJO-2, 2016 WL 6821854,\n\nat *8 (E.D. Cal. Nov. 17, 2016) (O’Neill, C.J.); United States v. Bustos, No. 1:08-\n\nCR-297-LJO-3, 2016 WL 6821853, at *8 (E.D. Cal. Nov. 17, 2016) (O’Neill,\n\nC.J.).\n\n Finally, the indictment in this case also indicates indivisibility. “[A]n\n\nindictment . . . could indicate, by referencing one alternative term to the exclusion\n\nof all others, that the statute contains a list of elements, each one of which goes\n\ntoward a separate crime.” Mathis, ___ U.S. at ___, 136 S. Ct. at 2257. The\n\nindictment in this case omitted “inveigles” and “decoys” and charged Gillis with\n\nsoliciting kidnapping “by seizing, confining, kidnapping, abducting, and carrying\n\naway.” The indictment in this case, in charging the § 373 offense, listed multiple\n\nmanners of carrying out the underlying § 1201(a) offense. The indictment in this\n\ncase did not list one term to the exclusion of all others, indicating that such terms\n\nare means, not elements. Moreover, some of the means listed in the indictment are\n\nnearly synonymous (i.e., abducting and carrying away) illustrating that a jury need\n\nnot agree on the specific means employed, just that the first element was satisfied.\n\nBecause all of the information before us points in the same direction, we have no\n\ntrouble concluding that § 1201(a) is indivisible and that the categorical, rather than\n\nthe modified categorical, approach applies.\n\n 43\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 44 of 80\n\n\n In applying the categorical approach, “we must presume that the conviction\n\nrested upon [nothing] more than the least of th[e] acts criminalized, and then\n\ndetermine whether even those acts” qualify under § 373. See St. Hubert, 909 F.3d\n\nat 349 (quoting Moncrieffe v. Holder, 569 U.S. 184, 190-91, 133 S. Ct. 1678, 1684\n\n(2013)); United States v. Davis, 875 F.3d 592, 597 (11th Cir. 2017) (“If the statute\n\nis indivisible, we use the categorical approach. In that case a conviction under it\n\nqualifies as a violent felony only if all of the acts criminalized in the statute involve\n\nthe use of physical force against the person of another.”). Accordingly, in\n\nconsidering whether violations of § 1201(a) necessarily involve the “use, attempted\n\nuse, or threatened use of physical force against property or against the person of\n\nanother” as to qualify under § 373(a), we presume that the federal kidnapping\n\nconviction rested upon means of inveiglement and/or decoy—the least of the acts\n\ncriminalized by § 1201(a).20\n\nE. Physical Force Requirement\n\n With this least culpable conduct criminalized by § 1201(a) in mind, we must\n\nnow determine whether the offense necessarily “has as an element the use,\n\nattempted use, or threatened use of physical force against property or against the\n\nperson of another” as to satisfy § 373(a). In considering this question, we look to\n\n\n 20\n Of course, the least of the acts criminalized—inveiglement and decoy—suffices to\ncommit the crime only if the other element—“holds for ransom or reward or otherwise”—is also\nsatisfied. § 1201(a).\n 44\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 45 of 80\n\n\ncases considering the ACCA’s elements clause and § 921(a)(33)(A)’s\n\nmisdemeanor crime of domestic violence definition for guidance. This is because,\n\nfirst, those statutes have similar force clauses to § 373(a). Compare 18 U.S.C.\n\n§ 373(a) (“the use, attempted use, or threatened use of physical force against\n\nproperty or against the person of another”), with 18 U.S.C. § 924(e)(2)(B)(i) (“the\n\nuse, attempted use, or threatened use of physical force against the person of\n\nanother”), and 18 U.S.C. § 921(a)(33)(A) (“the use or attempted use of physical\n\nforce”). Second, all the relevant statutes contemplate violent force. Compare 18\n\nU.S.C. § 373 (titled “Solicitation to commit a crime of violence”), with 18 U.S.C.\n\n§ 924(e)(2)(B) (defining “violent felony”), and 18 U.S.C. § 921(a)(33)(A)\n\n(defining “misdemeanor crime of domestic violence”).\n\n The Supreme Court, in Curtis Johnson v. United States, considered the\n\nmeaning of “physical force” within the ACCA’s elements clause. 559 U.S. 133,\n\n138, 130 S. Ct. 1265, 1270 (2010). The Court stated that “[t]he adjective\n\n‘physical’ is clear in meaning . . . . It plainly refers to force exerted by and through\n\nconcrete bodies—distinguishing physical force from, for example, intellectual\n\nforce or emotional force.” Id.; see also Stokeling v. United States, ___ U.S. ___,\n\n___, 139 S. Ct. 544, 552 (2019) (stating the same). The Supreme Court, in United\n\nStates v. Castleman extended this observation to § 921(a)(33)(A)’s misdemeanor\n\ncrime of violence definition. 572 U.S. 157, 170, 134 S. Ct. 1405, 1414 (2014).\n\n 45\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 46 of 80\n\n\nWe accordingly have no trouble concluding that § 373(a)’s reference to “physical\n\nforce” also “refers to force exerted by and through concrete bodies—distinguishing\n\nphysical force from, for example, intellectual force or emotional force.” See Curtis\n\nJohnson, 559 U.S. at 138, 130 S. Ct. at 1270.\n\n The next question is whether § 1201(a) kidnapping by means of\n\ninveiglement or decoy categorically involves the use, attempted use, or threatened\n\nuse of physical force sufficient to satisfy § 373(a)’s force clause.\n\nF. Kidnapping by Means of Inveiglement or Decoy\n\n We first pause to define “inveigle” and “decoy.” The New Oxford\n\nAmerican Dictionary defines “inveigle” as to “persuade (someone) to do\n\nsomething by means of deception or flattery” while Merriam-Webster’s Collegiate\n\nDictionary defines it as “to win over by wiles” and “to acquire by ingenuity or\n\nflattery.” New Oxford American Dictionary 913 (3d ed. 2010); Merriam-\n\nWebster’s Collegiate Dictionary 616 (10th ed. 1999). As to “decoy,” the New\n\nOxford American Dictionary defines it as to “lure or entice (a person or animal)\n\naway from an intended course, typically into a trap” while Merriam-Webster’s\n\nCollegiate Dictionary defines it as “to lure by or as if by a decoy.” New Oxford\n\nAmerican Dictionary 451 (3d ed. 2010); Merriam-Webster’s Collegiate Dictionary,\n\n300 (10th ed. 1999). The plain meanings of “inveigle” and “decoy” indicate that\n\nthese means of violating the federal kidnapping statute require intellectual or\n\n 46\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 47 of 80\n\n\nemotional force, distinct from the requisite physical force required to satisfy\n\n§ 373(a)’s force clause.\n\n Next, we look to case law considering kidnapping by means of inveiglement\n\nand/or decoy prosecuted under § 1201(a) to determine whether the statute\n\nnecessarily requires physical force as opposed to intellectual or emotional force.\n\n The Supreme Court in Chatwin v. United States reversed the defendants’\n\nfederal kidnapping convictions because there was no evidence that the victim was\n\n“held” against her will. See 326 U.S. 455, 460-62, 66 S. Ct. 233, 235-36 (1946).\n\nDefendant Chatwin, a 68-year-old man, hired a 15-year-old girl, Dorothy Wyler, as\n\nhis live-in housekeeper and taught Wyler that plural marriage conformed with the\n\ntrue principles of the Mormon faith. Id. at 457, 66 S. Ct. at 234. Wyler entered\n\ninto a “celestial marriage” with Chatwin and became pregnant. Id. at 457-58, 66\n\nS. Ct. at 234.\n\n Wyler’s parents informed the authorities, who took Wyler into juvenile\n\ncustody. Id. at 458, 66 S. Ct. at 234. Later, after being dropped off at a movie\n\ntheatre by a juvenile probation officer, Wyler left the theatre and ultimately\n\ntraveled to Mexico to be legally married to Chatwin. Id. at 458, 66 S. Ct. at 234-\n\n35. Subsequently, Wyler and Chatwin traveled back to Utah and then to Arizona,\n\nwhere federal authorities eventually found them living under assumed names. Id.\n\nat 458, 66 S. Ct. at 235. Chatwin and two codefendants, who had traveled to\n\n 47\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 48 of 80\n\n\nMexico with Wyler, were convicted of kidnapping Wyler. Id. at 458-59, 66 S. Ct.\n\nat 235.\n\n Reversing the convictions, the Supreme Court explained that the kidnapping\n\nstatute “contemplates that the kidnapped victim shall have been (1) unlawfully\n\nseized, confined, inveigled, decoyed, kidnapped, abducted, or carried away by any\n\nmeans whatsoever and (2) held for ransom or reward or otherwise.” Id. at 459,\n\n465, 66 S. Ct. at 235, 237 (internal quotation marks omitted). The government\n\nargued that both elements were met, asserting that the defendants unlawfully\n\n“inveigled” or “decoyed” Wyler away from the custody of her parents and the\n\njuvenile court authorities and that she was “held” during the period between her\n\nescape from juvenile custody and her trip to Mexico to marry Chatwin. Id. at 459,\n\n66 S. Ct. at 235. The Supreme Court rejected those arguments, holding that the\n\ngovernment failed to prove that Wyler was “held” within the meaning of the\n\nkidnapping statute. Id. at 460, 66 S. Ct. at 235.\n\n The Supreme Court explained that:\n\n The act of holding a kidnapped person . . . necessarily implies\n an unlawful physical or mental restraint for an appreciable period\n against the person’s will and with a willful intent so to confine the\n victim.\n\nId. (emphasis added). There was no evidence in Chatwin that the defendants\n\n“imposed at any time an unlawful physical or mental restraint upon [Wyler’s]\n\nmovements” or that “she was deprived of her liberty, compelled to remain where\n 48\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 49 of 80\n\n\nshe did not wish to remain, or compelled to go where she did not wish to go.” Id.\n\nIn other words, the government failed to prove an act of unlawful restraint because\n\nthere was no proof that the defendants “willfully intended through force, fear or\n\ndeception to confine [Wyler] against her desires.” Id. at 460, 66 S. Ct. at 235-36.\n\n While not addressing whether the first element of kidnapping can be\n\nsatisfied by means of inveiglement and/or decoy not involving the use, threatened\n\nuse, or attempted use of physical force, Chatwin makes clear that the second\n\n“holding” element may be satisfied by use of “physical or mental restraint.” It\n\nmakes clear that the second element (the “holding” requirement) of federal\n\nkidnapping can encompass intellectual or emotional force of the type distinguished\n\nfrom the requisite “physical force” in Curtis Johnson. See 559 U.S. at 138, 130\n\nS. Ct. at 1270.\n\n Next, the federal kidnapping considered in United States v. Boone, 959 F.2d\n\n1550 (11th Cir. 1992), similarly involved “inveiglement” or “decoy” under\n\n§ 1201(a) with no physical restraint of the victim. In Boone, the defendant Boone\n\nand the victim Jonathan Wood drank and used drugs together, and Boone later\n\nconvinced Wood to travel with him to Georgia, falsely telling Wood of a marijuana\n\npatch located there. Id. at 1552. The men drove to Georgia in victim Wood’s car\n\nwith Boone at the wheel. Id. In a rural area in Georgia, Boone and Wood\n\nproceeded on foot into a wooded area, at which time Boone “borrowed” Wood’s\n\n 49\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 50 of 80\n\n\nknife. Id. at 1553. After walking some distance, the victim Wood realized that he\n\nhad been deceived and there was no marijuana patch. Id. Boone then stabbed\n\nWood, tied him up, and left him to die. Id.\n\n This Court determined that there was sufficient evidence to support Boone’s\n\n§ 1201 kidnapping conviction.21 Id. at 1557. We explained that inveigling or\n\ndecoying someone across state lines alone does not constitute kidnapping. Id. at\n\n1555. Rather, kidnapping by inveiglement occurs when “the alleged kidnapper had\n\nthe willingness and intent to use physical or psychological force to complete the\n\nkidnapping in the event that his deception failed.” Id. (emphasis added). In other\n\nwords, “[w]here an inveiglement occurs and force is held in reserve only because\n\nthe kidnapper’s deception is operating successfully, an unlawful interference with\n\nthe actions of another has occurred—whether or not that person is aware of the\n\ninterference—such that a kidnapping and holding has occurred under the statute.”\n\nId. at 1556.\n\n Applying those principles, this Court concluded that Boone’s conduct\n\nconstituted a kidnapping by inveiglement despite the fact that “force was not used\n\nprior to the crossing of state lines.” Id. We explained that Boone inveigled Wood\n\n\n\n 21\n Although the Boone Court concluded that there “was indeed sufficient evidence for a\nproperly instructed jury to have convicted the defendant” of kidnapping, the Court remanded\nBoone’s case for a new trial because the district court did not properly instruct the jury on the\nintent element of Boone’s kidnapping offense. Boone, 959 F.2d at 1557-58.\n 50\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 51 of 80\n\n\ninto driving to Georgia and then traveled with him, even driving Wood’s car. Id.\n\nThus, Boone remained at all times “in a position where he could use force to\n\nensure the kidnapping and transporting of Wood to the remote site where the\n\nmurder . . . would take place.” Id. We noted that Boone had placed Wood under\n\nboth mental and physical restraints resulting from “the deception Boone created\n\nand from Boone’s apparent willingness to use force to keep Wood restrained.”\n\nId. 22\n\n In reaching this conclusion, the Boone Court distinguished our prior\n\nprecedent in United States v. McInnis, 601 F.2d 1319 (5th Cir. 1979),23 in which\n\nthe victim was lured from Texas to Mexico, but the victim traveled alone. Boone,\n\n959 F.2d at 1556. In the event the victim was not successfully tricked into going to\n\nMexico, there were no further steps, forcible or otherwise, to kidnap him. Id. The\n\nformer Fifth Circuit stated that the entirely voluntary act of a victim in crossing\n\nstate lines does not violate the kidnapping statute even if it was induced by\n\ndeception. Id. at 1557.\n\n\n 22\n Quoting Boone, the Annotations and Comments to this Court’s pattern jury instruction\non § 1201(a) kidnapping state: “‘Inveiglement’ becomes unlawful under the federal kidnapping\nstatute, ‘when the alleged kidnapper interferes with his victim’s action, exercising control over\nhis victim through the willingness to use forcible action should his deception fail.’” Eleventh\nCircuit Pattern Jury Instructions (Criminal Cases) O49 (2016) (quoting Boone, 959 F.2d at 1555\nn.5).\n 23\n In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this\nCourt adopted as binding precedent all decisions of the former Fifth Circuit handed down prior\nto October 1, 1981.\n 51\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 52 of 80\n\n\n The Boone Court explained that because the victim in McInnis was\n\nsupposed to travel alone in crossing state lines, the victim was not “continually\n\nsubjected to a kidnapper’s ongoing efforts to maintain the deception and advance\n\nthe intended kidnapping.” Id. In other words, the McInnis kidnappers “did not\n\nstand ready to use force against their victim, thereby exercising control over him.”\n\nId. By contrast, in a case like Boone’s where the kidnapper accompanies the\n\ninveigled victim, “[t]he victim is kept from acting in an entirely voluntary manner\n\nby the acts, presence, and intent of his inveigling kidnapper.” Id.\n\n Boone demonstrates that a federal kidnapping conviction may be sustained\n\nwhere kidnapping by means of inveiglement or decoy has occurred without the use\n\nof force and where the kidnapper has “the willingness and intent to use physical or\n\npsychological force to complete the kidnapping in the event that his deception\n\nfailed.” Id. at 1555 (emphasis added). The victim in Boone was inveigled and\n\ndecoyed across state lines without the use of physical force. Id. at 1552-53. This\n\nCourt determined that it is up to the fact finder to determine whether the kidnapper\n\nheld physical or psychological force in reserve “in the event that his deception\n\nfailed.” Id. at 1555. Accordingly, Boone makes clear that federal kidnapping may\n\nbe committed by means of inveiglement and/or decoy (without the use of physical\n\nforce) and then maintained solely by psychological force.\n\n\n\n 52\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 53 of 80\n\n\n Cases from our sister circuits similarly demonstrate that § 1201(a) can be\n\nviolated without the use of physical force. See United States v. Jenkins, 849 F.3d\n\n390, 393-94 (7th Cir. 2017) (holding that § 1201(a) kidnapping can be committed\n\n“without using, threatening to use, or attempting to use physical force”), judgment\n\nvacated on other grounds, 138 S. Ct. 1980 (2018); United States v. Lentz, 383 F.3d\n\n191, 203-04 (4th Cir. 2004) (reversing a grant of judgment of acquittal where the\n\ndefendant, without physical force, inveigled the victim into traveling across state\n\nlines and there was circumstantial evidence that “unlawful physical or mental\n\nrestraint” was used to hold the victim); United States v. Wills, 234 F.3d 174, 177\n\n(4th Cir. 2000) (“By its terms, § 1201(a) criminalizes kidnappings accomplished\n\nthrough physical, forcible means and also by nonphysical, non-forcible means.”);\n\nUnited States v. Garcia, 854 F.2d 340, 344-45 (9th Cir. 1988) (holding that a\n\nkidnapping continued past the date the defendant told the victim to leave, even\n\nthough no force was used after this date, because the psychological effects of the\n\nkidnapping persisted). 24\n\n The above-discussed cases leave no doubt that § 1201(a) convictions can be\n\nsustained in cases where physical force was not used. Beyond those cases, we\n\nfurther believe that there is a realistic probability that future federal prosecutions\n\n\n\n 24\n See also Delgado-Hernandez v. Holder, 697 F.3d 1125, 1130 (9th Cir. 2012) (stating in\ndicta that “[t]he federal kidnapping statue has no force requirement.”).\n 53\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 54 of 80\n\n\ncould charge defendants who have not used physical force with violating\n\n§ 1201(a). See United States v. Vail-Bailon, 868 F.3d 1293, 1306 (11th Cir. 2017)\n\n(considering hypotheticals proffered by defendant to determine whether Florida\n\nfelony battery was a crime of violence). A hypothetical discussed at oral argument\n\nprovides a persuasive example of this realistic probability. Consider the following\n\nscenario involving a grandparent (A); the grandparent’s child (B); and (C), the\n\nchild of B and grandchild of A. A perceives B as an unfit parent, not living up to\n\nA’s perception of good parenting (or perhaps influenced by in-law or other\n\ndomestic tensions). A decides to intervene and absconds with C, holding C against\n\nthe wishes of B and saying that C will be returned to B when B reforms and\n\nconforms to A’s perception of a fit parent. In this hypothetical situation, it is\n\nentirely feasible that A might abscond with C by inveiglement and hold C using\n\npsychological force only—all without the use, threatened use, or attempted use of\n\nphysical force against either B or C. 25 We do not believe this hypothetical is of the\n\n“far-fetched” variety that this Court has declined to treat as indicating that a statute\n\n\n 25\n The second element of § 1201(a)—holding “for ransom or reward or otherwise”—is\neasily satisfied by this hypothetical as it merely requires that the captor seeks to “secure some\nbenefit to himself.” Gooch v. United States, 297 U.S. 124, 128, 56 S. Ct. 395, 397 (1936).\n“Otherwise” has been construed broadly to cover many sought benefits. See United States v.\nSatterfield, 743 F.2d 827, 849-50 (11th Cir. 1984) (determining that kidnapping an individual to\nsilence them as a potential witness satisfied the “or otherwise” requirement), superseded by\nstatute on other grounds as recognized by United States v. Edwards, 728 F.3d 1286, 1292 (11th\nCir. 2013); see also United States v. Smith, 831 F.3d 793, 802 (7th Cir. 2016) (finding “or\notherwise” to be satisfied where the defendant kidnapped an infant because she wanted a baby);\nUnited States v. Montgomery, 635 F.3d 1074, 1086 (8th Cir. 2011) (same).\n 54\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 55 of 80\n\n\ncan be violated in a non-physically forceful manner. See, e.g., id. at 1305.\n\nMoreover, innumerable courts (including those discussed above) have followed the\n\nSupreme Court in Chatwin in expressly contemplating that the federal kidnapping\n\ncrime can be committed by mere inveiglement and holding the victim by either\n\nphysical or psychological force. These cases did not involve far-fetched situations;\n\nthey demonstrate the realistic probability of future prosecutions of § 1201(a) where\n\nthere has been no use, threatened use, or attempted use of physical force.\n\n Because § 1201(a) can be violated without the “use, attempted use, or\n\nthreatened use of physical force against property or against the person of another”\n\nas required by § 373(a)’s force clause, and because we know from Curtis Johnson\n\nand its progeny that “physical force” does not include “intellectual force or\n\nemotional force,” we conclude that Gillis’s § 373 conviction must be reversed. We\n\ndo not reach this conclusion lightly. Undoubtedly, many and perhaps even most\n\nfederal kidnappings do, as a factual matter, involve uses of force against the\n\nvictim. See, e.g., United States v. Adams, 83 F.3d 1371, 1372 (11th Cir. 1996)\n\n(defendant husband kidnapped his wife by attempting to force her into her car and\n\nshooting her in the abdomen when she broke free and began to run away).\n\nHowever, binding precedent requires that we apply the categorical approach and\n\nclose our eyes to Gillis’s actual conduct. And in deciding whether § 1201(a)\n\nkidnapping can realistically be committed without the use, threatened use, or\n\n 55\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 56 of 80\n\n\nattempted use of physical force, we cannot close our eyes to the fact that the\n\nSupreme Court has said that it can be committed using either physical or mental\n\nrestraint and that numerous circuit courts have followed suit.\n\n For the foregoing reasons, the judgment of the district court is\n\n AFFIRMED IN PART AND REVERSED IN PART.\n\n\n\n\n 56\n\n Case: 16-16482 Date Filed: 09/13/2019 Page: 57 of 80\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Dane Gillis\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-09-13\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: Yes\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 16-16482 Date Filed: 09/13/2019 Page: 1 of 80\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 16-16482\\n ________________________\\n\\n D.C. Docket No. 6:15-cr-00226-CEM-GJK-1\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellee,\\n\\n versus\\n\\nDANE GILLIS,\\n\\n Defendant-Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (September 13, 2019)\\n\\nBefore JILL PRYOR, ANDERSON, and HULL, Circuit Judges.\\n\\nPER CURIAM:\\n\\n After a jury trial, Defendant Dane Gillis appeals his convictions for:\\n\\n(1) attempting to knowingly induce or entice a minor to engage in sexual activity,\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 2 of 80\\n\\n\\nin violation of 18 U.S.C. § 2422(b) (Count 1); (2) solicitation of another to commit\\n\\nthe crime of federal kidnapping under 18 U.S.C. § 1201(a), in violation of 18\\n\\nU.S.C. § 373 (Count 2); and (3) knowingly transmitting a communication\\n\\ncontaining a threat to kidnap, in violation of 18 U.S.C. § 875(c) (Count 3). On\\n\\nappeal, Gillis argues that (1) the government failed to present sufficient evidence to\\n\\nsupport his § 2422(b) conviction in Count 1, and (2) the district court deprived him\\n\\nof his constitutional right to present a defense by prohibiting the testimony of his\\n\\nproposed expert witnesses. Gillis also contends that his § 373 solicitation\\n\\nconviction in Count 2 must be vacated because § 1201(a) kidnapping does not\\n\\ncategorically satisfy the use-of-force element in § 373.\\n\\n After careful review of the record and the parties’ briefs, and with the\\n\\nbenefit of oral argument, we affirm in part and reverse in part. We first recount the\\n\\nevidence and procedural history in this case.\\n\\n I. TRIAL EVIDENCE\\n\\n The three charges arose from Gillis’s online communications with an\\n\\nundercover agent from September 1-16, 2015. These communications involved\\n\\ntwo separate intended victims: (1) M.O., Gillis’s coworker; and (2) the undercover\\n\\nagent’s fictional 11-year-old daughter.\\n\\n In late August 2015, Gillis posted an ad on the Orlando, Florida, “personals”\\n\\nsection of the website Craigslist under the “casual encounters” subsection. The ad\\n\\n 2\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 3 of 80\\n\\n\\nstated: “Looking for a guy or a group who [are] into extremely taboo scenes. Hi\\n\\nrisk and reward for the right sadistic Pervert.”\\n\\n On September 1, 2015, Gillis’s ad caught the attention of Special Agent\\n\\nRodney Hyre, with the Federal Bureau of Investigation’s (“FBI”) Violent Crimes\\n\\nAgainst Children Task Force. Agent Hyre was reviewing ads on Craigslist to\\n\\nidentify individuals who might be soliciting sexual activity with children. Posing\\n\\nundercover as the father of an 11-year-old girl, Agent Hyre replied to Gillis’s ad.\\n\\nAgent Hyre identified himself as a “40 yo[] dad perv with 11 yo daughter” who\\n\\nwas interested in meeting “like minding people.”\\n\\n Shortly thereafter, Gillis, who at the time was 58 years old, responded, “Tell\\n\\nme more . . . i know a 40 yo that needs to be schooled.” Gillis then sent Agent\\n\\nHyre a picture of victim M.O. and asked “Any pics?” In response, Agent Hyre\\n\\nsent Gillis a photograph of his supposed daughter (actually a childhood photograph\\n\\nof a fellow law enforcement officer), with the message “sweet for 11. don’t you\\n\\nthink.” Over the next two and a half weeks, Gillis and Agent Hyre carried on a\\n\\nconversation in which they discussed (1) a plan to kidnap and rape Gillis’s\\n\\ncoworker M.O., and (2) a plan for Gillis to meet and engage in sexual activity with\\n\\nAgent Hyre’s fictional 11-year-old daughter.\\n\\n Regarding the kidnapping plan, Gillis told Agent Hyre that he was “looking\\n\\nto snag [M.O.] and use her a[s] a sex slave.” During the course of the\\n\\n 3\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 4 of 80\\n\\n\\nconversation, Gillis sent Hyre three more pictures of M.O. and explained that M.O.\\n\\nwas his coworker, that she was “unwilling and unknowing,” and that kidnapping\\n\\nher would require “some strategic planning . . . manpower etc.”\\n\\n Gillis stated that the kidnapping would have to take place early in the\\n\\nmorning, around 4:30 a.m., because of his and M.O.’s respective work schedules.\\n\\nGillis asked Agent Hyre if he had any friends, specifically “someone with\\n\\nexperience,” that would be interested in assisting with the kidnapping plot. Gillis\\n\\nexplained that they would “[n]eed help,” “a van,” and “a place to keep [M.O.] for\\n\\nat least 24 hours,” and recommended that they “hood and[/]or blindfold her” and\\n\\nwear masks themselves. Gillis described the types of sexual acts he wanted to\\n\\nperform on M.O. and described her as “a goody 2 shoes flirt that NEEDS to be\\n\\ntaught a lesson.” Gillis told Agent Hyre that he was “open to any ‘ending’\\n\\nscenario when it [comes] to her.”\\n\\n Regarding the minor daughter, Gillis told Agent Hyre early on in the\\n\\nconversation that he would “love to meet [Agent Hyre’s] girl” and asked when he\\n\\ncould meet her. At one point during the conversation, Agent Hyre asked Gillis for\\n\\nclarification about whether Gillis was “interested in my 11 yo girl or just older,” to\\n\\nwhich Gillis responded, “Right now im only interested in your 11 yo . . . the other\\n\\nwe can talk about.” As their plans to meet progressed, Gillis asked Agent Hyre\\n\\nwhat types of sexual acts the daughter would be willing to perform. When Agent\\n\\n 4\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 5 of 80\\n\\n\\nHyre told Gillis that “[s]he will do whatever you say” and asked what Gillis would\\n\\nlike to do to the girl, Gillis told Hyre that he would like to do “a little of\\n\\neverything,” including oral sex and vaginal penetration.\\n\\n Gillis and Hyre initially planned to meet on September 10, 2015, but Gillis\\n\\nbacked out at the last minute. The following day, Agent Hyre reached out to Gillis\\n\\nagain, and they resumed discussions about both the plan to kidnap M.O. and the\\n\\nplan for Gillis to have sex with Agent Hyre’s fictional daughter. Gillis explained\\n\\nthat he backed out of the first meeting with Agent Hyre and the daughter because\\n\\nhe was “a little nervous,” having “[n]ever been with a young one” before, and was\\n\\nconcerned that Agent Hyre might be setting him up. Agent Hyre reassured Gillis\\n\\nthat he was not being set up, and they then planned a second rendezvous in which\\n\\nGillis and Agent Hyre would meet first to “show we are real” and then Agent Hyre\\n\\nwould take Gillis back to his house to meet the fictional daughter.\\n\\n As they were planning this second meeting, Gillis asked Agent Hyre seven\\n\\ntimes for more pictures of the daughter and requested that Agent Hyre dress her in\\n\\n“a short skirt no underwear” for their meeting. When Agent Hyre sent Gillis a\\n\\nsecond picture, Gillis commented: “Looks [like] she has some tasty little titties . . .\\n\\nis she still all smooth down below?” Ultimately, they arranged to meet at a Gander\\n\\nMountain parking lot in Lake Mary, Florida—about an hour’s drive from Gillis’s\\n\\nhome in Leesburg, Florida—on September 16, 2015.\\n\\n 5\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 6 of 80\\n\\n\\n On the day of this second planned meeting, Gillis drove to the Gander\\n\\nMountain parking lot in Lake Mary. Another FBI agent posed as the 11-year-old’s\\n\\nfather and waited in a tan Buick, while Agent Hyre and a third agent conducted\\n\\nsurveillance from the other side of the parking lot. Gillis flashed his headlights,\\n\\nand the agent posing as the father tapped his brake lights. After approaching\\n\\nGillis’s car and confirming his identity, the agent asked him, “Do you want to go to\\n\\nthe house?” and Gillis answered, “Sure.” The agents then arrested Gillis and\\n\\nadvised him of his constitutional rights under Miranda v. Arizona, 384 U.S. 436,\\n\\n86 S. Ct. 1602 (1966). Gillis waived his rights and agreed to talk to the agents.\\n\\n In a post-Miranda interview, Gillis admitted: (1) that he had been emailing\\n\\nwith the father of an 11-year-old girl; (2) that those conversations centered on his\\n\\nhaving sex with the daughter; and (3) that he had driven an hour from Leesburg for\\n\\nno other reason than to “have sex with the little girl.” Gillis admitted that “for\\n\\napproximately the last two years” he had “fantasized about having sex with\\n\\nchildren.” A subsequent search of Gillis’s computer revealed sexually suggestive\\n\\nphotographs of prepubescent girls and his internet search history showed that,\\n\\nsince 2011, Gillis repeatedly sought out pornographic images of preteen girls.\\n\\n Regarding the plot to kidnap M.O., Gillis first told agents during his\\n\\npost-Miranda interview that her name was Jamie Johnson and gave a detailed story\\n\\nabout how she had broken his heart. Gillis admitted he had been posting on\\n\\n 6\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 7 of 80\\n\\n\\nCraigslist for the past couple of years and had 10 to 20 conversations with people\\n\\nabout helping him to kidnap and hurt Jamie Johnson. When the agents confronted\\n\\nGillis with the victim’s true name, Gillis admitted that M.O. was the person he had\\n\\nbeen sending pictures of and “talking about kidnapping and raping and possibly\\n\\nkilling.” Gillis explained that they were coworkers but had no romantic\\n\\nrelationship. Gillis admitted that, two weeks prior, M.O. had rejected him and told\\n\\nhim she was leaving the restaurant where they worked together and going to work\\n\\nat another restaurant.\\n\\n Further investigation revealed that Gillis had been trying for months to find\\n\\nsomeone to help him kidnap and rape M.O. Between February and August 2015,\\n\\nwithout M.O.’s knowledge, Gillis engaged in sexually explicit communications\\n\\nabout kidnapping and raping M.O. and sent photographs of M.O. to numerous\\n\\nCraigslist users. Additionally, around the time he was messaging Agent Hyre in\\n\\nSeptember 2015, Gillis conducted several internet searches containing the words\\n\\n“rape” and “kidnap.”\\n\\n II. PROCEDURAL HISTORY\\n\\n In a superseding indictment, a federal grand jury charged Gillis with:\\n\\n(1) attempting to knowingly induce or entice a minor to engage in sexual activity,\\n\\nin violation of 18 U.S.C. § 2422(b) (Count 1); (2) solicitation of another to commit\\n\\nthe crime of federal kidnapping under 18 U.S.C. § 1201(a), in violation of 18\\n\\n 7\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 8 of 80\\n\\n\\nU.S.C. § 373 (Count 2); and (3) knowingly transmitting a communication\\n\\ncontaining a threat to kidnap, in violation of 18 U.S.C. § 875(c) (Count 3). Gillis\\n\\npled not guilty and the case proceeded to a jury trial.\\n\\n At trial, the government presented evidence and testimony detailing the facts\\n\\noutlined above. Gillis then presented several witnesses and testified in his own\\n\\ndefense. Generally speaking, Gillis testified that his entire online conversation\\n\\nwith Agent Hyre was merely role-playing and fantasy, and he never actually\\n\\nintended to do any of the acts he described with respect to either M.O. or the\\n\\nfictional 11-year-old. Although the district court ruled that Dr. James Herriot,\\n\\nGillis’s expert witness, could testify about internet communication generally, Gillis\\n\\nultimately chose not to call him at trial.\\n\\n The jury found Gillis guilty on all three counts. The district court sentenced\\n\\nhim to 365 months imprisonment on Count 1, 240 months on Count 2, and 60\\n\\nmonths on Count 3, all to run concurrently. 1\\n\\n III. SUFFICIENCY OF THE EVIDENCE\\n\\n On appeal, Gillis challenges the sufficiency of the evidence to support his\\n\\n§ 2422(b) conviction in Count 1 for attempting to induce or entice a minor to\\n\\nengage in sexual activity.2 Gillis argues, among other things, that: (1) his\\n\\n 1\\n Gillis does not raise any sentencing issues on appeal.\\n 2\\n We review challenges to the sufficiency of the evidence supporting a conviction de\\nnovo, viewing the evidence and making all reasonable inferences therefrom in the light most\\n 8\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 9 of 80\\n\\n\\nCraigslist advertisement itself evidenced no intent to induce a minor to engage in\\n\\nsexual activity; (2) Agent Hyre introduced the notion of sex with a minor into the\\n\\nconversation; (3) Gillis abandoned the first planned meeting with the minor,\\n\\ndemonstrating an abandonment of any intent to engage in sexual activity with the\\n\\nminor; and (4) in setting up the second meeting, Gillis only sought to meet with the\\n\\nfather of the fictional minor to “discuss the possibility of future illicit activity.”\\n\\n Section 2422(b) proscribes knowing attempts to induce or entice a minor to\\n\\nengage in sexual activity, stating:\\n\\n Whoever, using the mail or any facility or means of interstate or foreign\\n commerce, . . . knowingly persuades, induces, entices, or coerces any\\n individual who has not attained the age of 18 years, to engage in\\n prostitution or any sexual activity for which any person can be charged\\n with a criminal offense, or attempts to do so, shall be fined under this\\n title and imprisoned not less than 10 years or for life.\\n\\n18 U.S.C. § 2422(b). To prove that a defendant violated § 2422(b) by attempting\\n\\nto induce a minor to engage in sexual activity, the government must show that the\\n\\ndefendant (1) had the specific intent to induce a minor to engage in sexual activity,\\n\\nand (2) took a substantial step toward the commission of that offense. United\\n\\nStates v. Lee, 603 F.3d 904, 913-14 (11th Cir. 2010); United States v. Yost, 479\\n\\nF.3d 815, 819 (11th Cir. 2007). This Court has held that a defendant may be\\n\\n\\n\\nfavorable to the jury’s verdict. United States v. White, 663 F.3d 1207, 1213 (11th Cir. 2011).\\nWe will reverse a guilty verdict only if “no trier of fact could have found guilt beyond a\\nreasonable doubt.” Id. (quotation marks omitted).\\n 9\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 10 of 80\\n\\n\\nconvicted under § 2422(b) even if he attempted to exploit only a fictitious minor\\n\\nand communicated only with an adult intermediary. See Lee, 603 F.3d at 912-13;\\n\\nsee also United States v. Murrell, 368 F.3d 1283, 1286-87 (11th Cir. 2004).\\n\\n Ample evidence supports Gillis’s conviction on Count 1. At trial, the\\n\\nevidence showed that Gillis engaged in a two-week online conversation with a\\n\\nperson he believed to be the parent of a minor daughter, during which he discussed\\n\\nin detail plans to meet and engage in sexual activity with the daughter. Though\\n\\nGillis is correct that Agent Hyre initiated discussion of the fictional minor, Gillis’s\\n\\nresponses as the conversation progressed demonstrated his sexual interest in the\\n\\ndaughter and intent to induce the daughter, through her father, to engage in sexual\\n\\nactivity.\\n\\n Furthermore, Gillis cancelled the first meeting because he was “nervous”\\n\\nand feared he was being set up, not because he was no longer interested in\\n\\nengaging in sexual activity with the minor daughter. Indeed, Gillis’s subsequent\\n\\ncomments to Agent Hyre in planning the second meeting show he remained\\n\\ninterested in engaging in sexual activity with the daughter and anticipated doing so\\n\\nafter first meeting the father. And Gillis took a substantial step toward\\n\\nconsummating that plan when he drove nearly an hour from his home to Lake\\n\\nMary for that meeting. See Murrell, 368 F.3d at 1288 (defendant’s two-hour travel\\n\\nto meet a minor for sex was corroborative of criminal intent).\\n\\n 10\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 11 of 80\\n\\n\\n Other evidence corroborated Gillis’s intent, including (1) Gillis’s admission,\\n\\nduring his post-Miranda interview, that he traveled to the Gander Mountain\\n\\nparking lot for the purpose of engaging in sex with a minor, (2) Gillis requested\\n\\nthat the minor daughter be wearing a particular outfit without underwear, and\\n\\n(3) the wealth of prepubescent images and search terms found on Gillis’s\\n\\ncomputer. Although Gillis testified that Agent Hyre’s account of the post-Miranda\\n\\ninterview was inaccurate and that he had no sexual interest in children, the jury\\n\\nwas free to disbelieve that testimony and consider it as substantive evidence of his\\n\\nguilt. United States v. Bacon, 598 F.3d 772, 776 (11th Cir. 2010).\\n\\n For all of these reasons, we conclude that sufficient evidence supported\\n\\nGillis’s § 2242(b) conviction in Count 1.\\n\\n IV. EXPERT WITNESSES\\n\\n Even if the evidence was sufficient, Gillis alternatively contends that the\\n\\ndistrict court deprived him of his Fifth and Sixth Amendment rights to present a\\n\\ndefense on all three counts (1) by limiting the testimony of Dr. Herriot, his expert\\n\\nwitness, and (2) by prohibiting Dr. Susan Sullivan, his other expert, from testifying\\n\\nat all. In order to review this claim, we outline the pretrial proffers about the\\n\\ntestimony of these two expert witnesses and the district court’s rulings thereon.\\n\\n Prior to trial, Gillis disclosed James W. Herriot, Ph.D., a sexologist, and\\n\\nSusan Sullivan, Ph.D., a clinical psychologist, as proposed experts on sexual\\n\\n 11\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 12 of 80\\n\\n\\ncommunication and behavior on the internet and Gillis’s own psychosexual\\n\\nmakeup, respectively. In separate motions, the government moved to exclude both\\n\\nexperts’ testimony, and the district court held hearings on both motions.\\n\\nA. Daubert Hearing as to Dr. Herriot’s Testimony\\n\\n At the Daubert 3 hearing, Dr. Herriot testified that he had an undergraduate\\n\\ndegree in computer science from Stanford University and that he earned his Ph.D.\\n\\nfrom the Institute for Advanced Study of Human Sexuality (“IASHS”) in 1996 and\\n\\nhad been on the faculty at IASHS ever since. Dr. Herriot stated that he was a\\n\\nmember of the American College of Sexologists and was certified as a sexologist\\n\\nthrough that organization. Dr. Herriot explained that he wrote his Ph.D.\\n\\ndissertation on sexual communication on the internet. As part of his research,\\n\\nDr. Herriot “analyzed about 20 million keystrokes worth of communication” on\\n\\n“interactive or nearly interactive forum, like sexual material.”\\n\\n Dr. Herriot testified that since his dissertation, he had done additional\\n\\nresearch regarding sexual communications on the internet and had also “kept up\\n\\nwith the field.” Regarding this additional research, Dr. Herriot stated that he had\\n\\nconducted “about 100” interviews related to sexual communications on the\\n\\ninternet. Dr. Herriot opined that there is “much that goes on in sexual\\n\\ncommunication [on the internet] that’s not obvious at first glance,” and\\n\\n\\n 3\\n Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993).\\n 12\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 13 of 80\\n\\n\\nunderstanding such communications can be counterintuitive. According to\\n\\nDr. Herriot, “[t]here’s a kind of space between what goes on in our minds and what\\n\\nwe actually do in real life,” and the internet “opens up an in-between space” where\\n\\npeople engage in fantasy role playing that involves “a combination of fact and\\n\\nfiction.” Dr. Herriot further explained that the internet creates a phenomenon\\n\\ncalled the “online disinhibition effect,” in which a person’s “identity becomes\\n\\ndecoupled from their . . . online behavior” and they behave differently online than\\n\\nthey would in the real world.\\n\\n When asked about Gillis specifically, Dr. Herriot stated that he could not\\n\\n“divine or know anything about [Gillis’s] motivation” in this case because he is not\\n\\na psychologist, but could “say . . . something about the overall context” of online\\n\\ncommunications. On cross-examination, Dr. Herriot admitted that: (1) his\\n\\ndissertation had never been published in an academic journal; (2) his study was\\n\\nbased predominantly on internet message-board postings that did not involve real-\\n\\ntime communication between users; and (3) his paper did not discuss the topic of\\n\\nrole playing on the internet. Dr. Herriot stated that he later expanded his research\\n\\nto chat rooms and instant messaging as well, but never published any of his results.\\n\\nDr. Herriot also admitted that, although he was a “professor” at IASHS, he did not\\n\\nteach any classes there, had not published any articles on human sexuality, and was\\n\\nmerely a resource for doctoral students.\\n\\n 13\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 14 of 80\\n\\n\\n Following the hearing, the district court issued a written order granting in\\n\\npart the government’s motion to exclude Dr. Herriot’s testimony. The district\\n\\ncourt noted that Gillis sought to introduce Dr. Herriot’s testimony on two separate,\\n\\nbut related, topics: (1) “how the internet works and how people are able to\\n\\ncommunicate and socialize on the internet” and (2) “the internet sub-culture for\\n\\nfantasy role-playing and sexual communications.” As to the first topic, general\\n\\ndiscussion of the internet and communication, the district court found that\\n\\nDr. Herriot was qualified to testify as an expert and that his testimony was reliable\\n\\nand relevant. The district court therefore permitted Gillis to offer Dr. Herriot’s\\n\\ntestimony on this topic.\\n\\n As to the second topic, fantasy role playing and sexual communications\\n\\nonline, the district court found that Gillis failed to disclose more than “an overview\\n\\nof the general genre of testimony that Dr. Herriot will offer and assurances that\\n\\nDr. Herriot has opinions pertinent to that category of inquiry.” The district court\\n\\nfurther found that although Dr. Herriot based his expertise on social science\\n\\nresearch and experience, he “provided little information in regards to the\\n\\ninterviews and studies he conducted,” and his studies were not randomized or peer\\n\\nreviewed and occurred nearly two decades ago. Similarly, to the extent that Dr.\\n\\nHerriot purported to rely on “academic literature,” he failed to identify those\\n\\nsources, and the district court was unable to assess their credibility. In addition,\\n\\n 14\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 15 of 80\\n\\n\\nDr. Herriot did not specify any single opinion he intended to introduce at trial, and\\n\\nthe general proposition he intended to offer—that some information people\\n\\ncommunicate anonymously over the internet is false—was within the common\\n\\nknowledge of laypersons. The district court therefore precluded Dr. Herriot from\\n\\ntestifying on the topic of fantasy role playing and sexual communications online.\\n\\nB. Later Hearing as to Dr. Sullivan’s Testimony\\n\\n Gillis represented that Dr. Sullivan had “performed a psychosexual\\n\\nevaluation” of Gillis and would testify about her opinions on Gillis’s\\n\\n“psychosexual makeup” and “sexual development.” During the hearing, defense\\n\\ncounsel provided copies of Dr. Sullivan’s expert report to the government and the\\n\\ndistrict court. However, it does not appear that the report itself was made a part of\\n\\nthe district court record. Though Dr. Sullivan apparently was available, she did not\\n\\ntestify at the hearing. Accordingly, we have few details regarding the contents of\\n\\nDr. Sullivan’s proposed testimony, other than that she would testify about Gillis’s\\n\\n“psychosexual makeup” and “sexual development.”\\n\\n At the hearing regarding Dr. Sullivan’s proposed testimony, the government\\n\\nargued that Gillis’s disclosure of Dr. Sullivan was untimely and inadequate. The\\n\\ndistrict court expressed concern that Dr. Sullivan’s proposed testimony was based\\n\\nsolely on her clinical interview with Gillis and would essentially allow Gillis to\\n\\ntestify through self-serving hearsay without his being subject to cross-examination.\\n\\n 15\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 16 of 80\\n\\n\\n Gillis responded that, in addition to interviewing him, Dr. Sullivan had also\\n\\nperformed several widely accepted psychological tests. Gillis also proffered that\\n\\nDr. Sullivan would testify, based on her evaluation, that Gillis “doesn’t have an\\n\\ninterest in prepubescent children.” The district court took the government’s\\n\\nmotion to exclude Dr. Sullivan’s testimony under advisement and allowed the\\n\\nparties to file supplemental briefing on the issue.\\n\\n On the first day of trial, the district court granted the government’s motion to\\n\\nexclude Dr. Sullivan’s testimony. The district court concluded that Dr. Sullivan\\n\\nwould simply be “relaying what [the] defendant told her,” and that the true purpose\\n\\nof her proposed testimony was to “present opinion testimony from an expert\\n\\nconcluding that the defendant did not have the requisite intent to commit the\\n\\n[enticement] offense” in Count 1 because he was not attracted to prepubescent\\n\\ngirls.\\n\\nC. Analysis\\n\\n Gillis does not argue that the district court abused its discretion in excluding\\n\\nDr. Sullivan’s testimony and part of Dr. Herriot’s testimony under the Federal\\n\\nRules of Evidence and Daubert. Rather, Gillis asserts that, even if technically\\n\\ninadmissible under the rules governing expert testimony, the experts’ testimony\\n\\nshould have been admitted because it was necessary to negate the subjective intent\\n\\nelement of all three charged offenses and to rebut the Federal Rule of Evidence\\n\\n 16\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 17 of 80\\n\\n\\n404(b) evidence of his internet search history. Gillis submits that the excluded\\n\\nexpert testimony would have placed in context his online communications and\\n\\nshown he was engaging in fantasy role play and had no intent to do these crimes.\\n\\nBy not allowing him to present that expert testimony, Gillis contends that the\\n\\ndistrict court deprived him of his constitutional right to present a defense.\\n\\n The Constitution grants criminal defendants the implicit right to present\\n\\nevidence in their favor. United States v. Hurn, 368 F.3d 1359, 1362 (11th Cir.\\n\\n2004) (citing U.S. Const. amends. V & VI). In evaluating a defendant’s claim that\\n\\nhis constitutional right to present a defense was violated, we examine (1) whether\\n\\nthe right was actually violated, and (2) if so, whether that error was harmless\\n\\nbeyond a reasonable doubt. Id. at 1362-63.\\n\\n Among other things, a defendant “must generally be permitted to introduce\\n\\nevidence directly pertaining to any of the actual elements of the charged offense,”\\n\\nas well as evidence that “could make the existence of one or more of the elements\\n\\nof the charged offense . . . more or less certain.” Id. at 1363. Notably, this general\\n\\nprinciple does not give the defendant an “unfettered right to offer testimony that is\\n\\nincompetent, privileged, or otherwise inadmissible under standard rules of\\n\\nevidence.” Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 653 (1988). But,\\n\\n“the fact that a particular rule of evidence requires the exclusion of certain\\n\\nevidence is not dispositive, as particular applications of a generally valid rule may\\n\\n 17\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 18 of 80\\n\\n\\nunconstitutionally deny a defendant his rights under the Compulsory Process or\\n\\nDue Process Clauses.” Hurn, 368 F.3d at 1363 n.2.\\n\\n Although Gillis does not challenge the district court’s exclusion of his\\n\\nexperts’ testimony under the Rules of Evidence or Daubert, whether that ruling\\n\\nwas correct is relevant to whether Gillis’s constitutional right to present a defense\\n\\nwas violated. Accordingly, we address whether the district court abused its\\n\\ndiscretion in excluding the testimony of Gillis’s experts before determining\\n\\nwhether that exclusion violated Gillis’s constitutional rights.\\n\\n Federal Rule of Evidence 702 governs the admissibility of expert testimony.\\n\\nFed. R. Evid. 702; United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004)\\n\\n(en banc). Rule 702 provides:\\n\\n A witness who is qualified as an expert by knowledge, skill, experience,\\n training, or education may testify in the form of an opinion or otherwise\\n if:\\n\\n (a) the expert’s scientific, technical, or other specialized knowledge will\\n help the trier of fact to understand the evidence or to determine a\\n fact in issue;\\n\\n (b) the testimony is based on sufficient facts or data;\\n\\n (c) the testimony is the product of reliable principles and methods; and\\n\\n (d) the expert has reliably applied the principles and methods to the facts\\n of the case.\\n\\n\\n\\n\\n 18\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 19 of 80\\n\\n\\nFed. R. Evid. 702. In determining whether to admit expert testimony under Rule\\n\\n702, district courts must consider if: (1) the expert is qualified to give competent\\n\\ntestimony about the matters he intends to address; (2) the methodology the expert\\n\\nemployed to reach his conclusions is sufficiently reliable under Daubert; and\\n\\n(3) the testimony will assist the trier of fact, through the application of scientific,\\n\\ntechnical, or other specialized expertise, to understand the evidence or determine a\\n\\nfact in issue. City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th\\n\\nCir. 1998).\\n\\n In Daubert, the Supreme Court explained that a district court faced with a\\n\\nproffer of expert testimony must assess whether the reasoning or methodology\\n\\nunderlying the testimony is scientifically valid and can properly be applied to the\\n\\nfacts in issue. Daubert, 509 U.S. at 592-93, 113 S. Ct. at 2796. Many factors may\\n\\nbear on that inquiry, including: (1) whether the theory or technique has been or can\\n\\nbe tested; (2) whether the theory or technique has been subjected to peer review\\n\\nand publication; (3) the known or potential error rate; and (4) whether the theory or\\n\\ntechnique is widely accepted. Id. at 593-94, 113 S. Ct. at 2796-97. The Supreme\\n\\nCourt emphasized that the Rule 702 inquiry is “a flexible one,” the ultimate goal of\\n\\nwhich is to determine the evidentiary relevance and reliability of the proposed\\n\\nexpert testimony. Id. at 594-95, 113 S. Ct. at 2797.\\n\\n\\n\\n 19\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 20 of 80\\n\\n\\n Even if an expert’s proposed testimony satisfies Rule 702 and Daubert, the\\n\\ntestimony must also comply with other limitations contained in the Rules of\\n\\nEvidence. Of relevance here, Rule 704(b) provides:\\n\\n In a criminal case, an expert witness must not state an opinion about\\n whether the defendant did or did not have a mental state or condition\\n that constitutes an element of the crime charged or of a defense. Those\\n matters are for the trier of fact alone.\\n\\nFed.R.Evid. 704(b). In other words, an expert may not opine on the defendant’s\\n\\nintent. See United States v. Augustin, 661 F.3d 1105, 1123 (11th Cir. 2011).\\n\\nHowever, an expert may, consistent with Rule 704(b), give testimony “that\\n\\nsupports an obvious inference with respect to the defendant’s state of mind if that\\n\\ntestimony does not actually state an opinion on [the] ultimate issue, and instead\\n\\nleaves this inference for the jury to draw.” Id. (internal quotations and alteration\\n\\nomitted).\\n\\n Here, the district court did not abuse its discretion in excluding Dr. Herriot’s\\n\\nand Dr. Sullivan’s testimony under Daubert and the evidentiary rules governing\\n\\nexpert testimony.4 As to Dr. Herriot, the district court thoroughly explained in its\\n\\n\\n 4\\n “We review for abuse of discretion the district court’s decisions regarding the\\nadmissibility of expert testimony and the reliability of an expert opinion.” Frazier, 387 F.3d at\\n1258. “Indeed, the deference that is the hallmark of abuse-of-discretion review requires that we\\nnot reverse an evidentiary decision of a district court unless the ruling is manifestly erroneous.”\\nId. (internal quotations and citation omitted). “Thus, it is by now axiomatic that a district court\\nenjoys considerable leeway in making these determinations.” Id. (internal quotations omitted).\\n“[W]e must affirm unless we find that the district court has made a clear error of judgment, or\\nhas applied the wrong legal standard.” Id. at 1259.\\n\\n 20\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 21 of 80\\n\\n\\norder why Dr. Herriot’s proposed testimony about fantasy and role playing in\\n\\nonline sexual communications did not satisfy Rule 702 and Daubert. Among other\\n\\nthings, the district court found that: (1) Dr. Herriot’s research was conducted\\n\\nnearly 20 years ago using a different online medium; (2) his studies were not\\n\\nrandomized, peer-reviewed, or published; (3) he was not able to specifically\\n\\nidentify the academic literature on which he purported to base his opinions; (4) he\\n\\ndid not demonstrate sufficient experience in the field of online sexual\\n\\ncommunications; and (5) his primary conclusion—that not all communications on\\n\\nthe internet are truthful—was within the knowledge of laypersons. Given these\\n\\ninfirmities, we have no trouble concluding the district court properly excluded\\n\\nDr. Herriot’s proposed testimony about online sexual communications. See\\n\\nFrazier, 387 F.3d at 1259; Harcros Chems., 158 F.3d at 562.\\n\\n We likewise have little trouble concluding the district court did not abuse its\\n\\ndiscretion in excluding Dr. Sullivan’s proposed testimony. See Frazier, 387 F.3d\\n\\nat 1259. The district court determined that Dr. Sullivan’s proffered opinion that\\n\\nGillis was not sexually attracted to prepubescent girls was simply a thinly veiled\\n\\nattempt by the defense to offer an expert opinion that Gillis lacked the requisite\\n\\nintent for the enticement offense in Count 1. We see no clear error in the district\\n\\ncourt’s determination that Dr. Sullivan’s proffered testimony would do more than\\n\\n“leave[ an] inference for the jury to draw,” and instead veered into the\\n\\n 21\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 22 of 80\\n\\n\\nimpermissible territory of offering an opinion on Gillis’s mental state. See\\n\\nAugustin, 661 F.3d at 1123 (internal quotation marks omitted); Fed. R. Evid.\\n\\n704(b).\\n\\n It is unsurprising, therefore, that Gillis does not contest the admissibility\\n\\naspect of the district court’s rulings. Accordingly, to show he was deprived of his\\n\\nconstitutional right to present a defense, Gillis must demonstrate a compelling\\n\\nreason for making an exception to the expert witness rules in this case to allow the\\n\\ntwo experts’ testimony. See Knight v. Dugger, 863 F.2d 705, 729 (11th Cir. 1988)\\n\\n(explaining that a conviction may be reversed based on the exclusion of evidence\\n\\nwhere there is either a clear error by the trial court in its evidentiary rulings or\\n\\n“compelling reasons for exceptions” to the rules of evidence). This he has not\\n\\ndone. Given that the district court did not err in rejecting Dr. Herriot’s and\\n\\nDr. Sullivan’s testimony, the mere fact that their testimony would have been\\n\\nhelpful to Gillis’s defense does not provide a compelling reason for admitting that\\n\\ntestimony despite its failure to satisfy Daubert and the rules of evidence.5 See id.\\n\\n 5\\n Gillis makes much of the Second Circuit’s decision in United States v. Joseph, 542 F.3d\\n13, 21 (2d Cir. 2008), abrogated in part on other grounds as recognized in United States v.\\nFerguson, 676 F.3d 260, 276 n.14 (2d Cir. 2011), in which that Court encouraged the district\\ncourt to reconsider the defendant’s request to present testimony from Dr. Herriot. However, the\\ndistrict court in that case rejected Dr. Herriot’s testimony primarily on relevancy grounds and\\nnot, as here, because it found his proposed testimony to be unreliable. Id. Furthermore, the\\nSecond Circuit stated that the reliability of testimony such as Dr. Herriot’s “depends heavily on\\nthe knowledge and experience of the expert, rather than the methodology or theory behind it.”\\nId. In this case, the district court specifically found that Gillis failed to show Dr. Herriot had\\nsufficient experience in the relevant subject matter to qualify him as an expert.\\n 22\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 23 of 80\\n\\n\\nThat is particularly so here, where Gillis chose to testify at trial and was able to\\n\\npresent his fantasy role playing argument to the jury.\\n\\n V. 18 U.S.C. § 373 CONVICTION\\n\\n Gillis challenges his Count 2 conviction for solicitation of another to commit\\n\\nthe crime of federal kidnapping under 18 U.S.C. § 1201(a), in violation of 18\\n\\nU.S.C. § 373. Section § 373 provides that:\\n\\n [w]hoever, with intent that another person engage in conduct\\n constituting a felony that has as an element the use, attempted use, or\\n threatened use of physical force against property or against the person\\n of another in violation of the laws of the United States, and under\\n circumstances strongly corroborative of that intent, solicits, commands,\\n induces, or otherwise endeavors to persuade such other person to\\n engage in such conduct, shall be imprisoned . . . .\\n\\n18 U.S.C. § 373(a) (emphasis added). To be convicted under § 373, the defendant\\n\\n(1) must solicit another person to “engage in conduct constituting a felony that has\\n\\nas an element the use, attempted use, or threatened use of physical force,” and\\n\\n(2) must solicit “such other person to engage in such conduct” under circumstances\\n\\nstrongly corroborative of that intent.6 Id.\\n\\n The actual, real-world conduct that Gillis solicited was a kidnapping by\\n\\nphysical violence, including hooding, blindfolding, and snagging the victim M.O.,\\n\\nputting her in a van, and then using her as a sex slave. The actual conduct Gillis\\n\\n\\n\\n 6\\n Although the § 373 statute is entitled “solicitation to commit a crime of violence,” the\\ntext of the statute does not use the term “crime of violence.”\\n 23\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 24 of 80\\n\\n\\nsolicited clearly “constitut[ed] a felony that ha[d] as an element the use . . . of\\n\\nphysical force” against the victim. 18 U.S.C. § 373(a). Nonetheless, Gillis\\n\\ncontends § 373’s elements text permits only the use of the categorical approach,\\n\\nwhich requires blindness to his actual conduct. Gillis argues our panel has no\\n\\nchoice in this matter because it is bound by our elements-clause precedent in\\n\\nUnited States v. McGuire, 706 F.3d 1333 (11th Cir. 2013). 7\\n\\n More specifically, Gillis contends that: (1) our McGuire precedent holds that\\n\\nthe text of the elements clause in 18 U.S.C. § 924(c) requires that we apply the\\n\\ncategorical approach; (2) the text of § 373 has an identical elements clause, which\\n\\nmeans McGuire requires the categorical approach here too; (3) the elements clause\\n\\nin § 373 modifies “felony,” not “conduct”; (4) under the categorical approach, we\\n\\nmust look to the least culpable acts by which § 1201(a) federal kidnapping can be\\n\\ncommitted; (5) the least culpable act of the § 1201(a) federal kidnapping Gillis\\n\\nsolicited is “confinement”; and (6) kidnapping by confinement can be\\n\\naccomplished without the use, attempted use, or threatened use of physical force.8\\n\\nSee Moncrieffe v. Holder, 569 U.S. 184, 190-91, 133 S. Ct. 1678, 1684 (2013).\\n\\n\\n 7\\n For discussion of McGuire’s subsequent treatment see infra note 10.\\n 8\\n Notably, the § 1201(a) statute also prohibits kidnapping by “inveiglement” or “decoy.”\\nAlthough Gillis does not argue that those are the least culpable acts for purposes of his case we\\nconsider this legal question de novo. See Splunge v. Shoney’s, Inc., 97 F.3d 488, 492 n.2 (11th\\nCir. 1996) (“Stipulations to pure questions of law are of course not binding on courts.” (citation\\nomitted)).\\n 24\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 25 of 80\\n\\n\\n The government disagrees and argues a conduct-based approach applies\\n\\nbecause: (1) the § 373 text twice refers to the “conduct” the defendant was\\n\\nsoliciting someone to engage in; (2) even though the elements clause follows\\n\\n“felony,” the § 373 text refers to “conduct constituting a felony,” not “an offense\\n\\nthat is a felony” as in § 924(c)(3)(A); (3) § 373 requires consideration of the actual\\n\\nconduct that the defendant solicited and only then asks if that conduct constitutes a\\n\\nfelony that has physical force as an element; and (4) the look-back problems of\\n\\nassessing a prior conviction that spawned the categorical approach do not apply\\n\\nhere.\\n\\n As a threshold issue, we must decide whether, under the prior panel\\n\\nprecedent rule, McGuire binds us to apply the categorical approach to the text of\\n\\n§ 373. To do that, we review McGuire in detail.\\n\\nA. Our McGuire Precedent\\n\\n The defendant in McGuire was convicted of two crimes: (1) attempting to\\n\\nset fire to, damage, destroy, disable, or wreck an aircraft, in violation of 18 U.S.C.\\n\\n§ 32(a)(1); and (2) using a firearm during and in relation to that crime of violence,\\n\\nin violation of 18 U.S.C. § 924(c)(1)(A). McGuire, 706 F.3d at 1335. The\\n\\ndefendant fired a single shot from a handgun in the general direction of an airborne\\n\\npolice helicopter. Id. McGuire did not involve a prior conviction and a look-back\\n\\nproblem. On appeal, the defendant challenged his § 924(c) firearm conviction,\\n\\n 25\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 26 of 80\\n\\n\\ncontending that his contemporaneous predicate § 32(a)(1) offense was not\\n\\ncategorically a crime of violence as defined in § 924(c)(3). Id. at 1336-37.\\n\\n The McGuire Court decided two legal questions: (1) whether the text of\\n\\n§ 924(c)(3)(A)’s elements clause required use of the categorical approach; and\\n\\n(2) if so, whether all plausible versions of a § 32(a)(1) predicate conviction\\n\\ncategorically involve the use, attempted use, or threatened use of physical force\\n\\nunder § 924(c)(3)(A) and thereby qualify as a crime of violence. See id. at 1336-\\n\\n38.\\n\\n As background, § 924(c)(3) defines a crime of violence as “an offense that is\\n\\na felony” that either: “(A) has as an element the use, attempted use, or threatened\\n\\nuse of physical force against the person or property of another” (the elements\\n\\nclause); or “(B) that by its nature, involves a substantial risk that physical force\\n\\nagainst the person or property of another may be used in the course of committing\\n\\nthe offense” (the residual clause). 9 18 U.S.C. § 924(c)(3)(A)-(B).\\n\\n As to § 924(c)(3)(A)’s elements clause, the McGuire panel held that it must\\n\\n“employ th[e] categorical approach because of the statute’s terms: It asks whether\\n\\nMcGuire committed ‘an offense’ that ‘has as an element the use, attempted use, or\\n\\n\\n\\n 9\\n Unlike the Armed Career Criminal Act (“ACCA”) and 18 U.S.C. § 924(c), the § 373\\ntext has no residual clause language. Compare 18 U.S.C. § 924(c)(3)(B) and 18 U.S.C.\\n§ 924(e)(2)(B)(ii), with 18 U.S.C. § 373(a).\\n\\n 26\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 27 of 80\\n\\n\\nthreatened use of physical force against the person or property of another.’”\\n\\nMcGuire, 706 F.3d at 1336 (first emphasis added). The McGuire panel reasoned\\n\\nthat whether a § 32(a)(1) conviction is a crime of violence within the meaning of\\n\\n§ 924(c)(3)(A)’s elements clause is “a question of law . . . that we must answer\\n\\n‘categorically’—that is, by reference to the elements of the offense, and not the\\n\\nactual facts of McGuire’s conduct.” Id.10\\n\\n In McGuire, the Court also explained that, even though McGuire’s conduct\\n\\nof “firing a gun at a flying helicopter is unmistakably violent, we must ask whether\\n\\n\\n\\n 10\\n In addition to holding that § 924(c)(3)(A)’s elements clause requires the categorical\\napproach, McGuire also indicated that § 924(c)(3)(B)’s residual clause required the categorical\\napproach. 706 F.3d at 1336–37. This court, sitting en banc, overruled McGuire to the extent that\\nit held the residual clause required the categorical approach. Ovalles v. United States, 905 F.3d\\n1231, 1234 (11th Cir. 2018) (en banc) (“[W]e hold that § 924(c)(3)(B) prescribes a conduct-\\nbased approach, pursuant to which the crime-of-violence determination should be made by\\nreference to the actual facts and circumstances underlying a defendant’s offense. To the extent\\nthat our earlier decision in United States v. McGuire holds otherwise, it is overruled.” (citation\\nomitted)). The Supreme Court, however, recently abrogated Ovalles. See United States v.\\nDavis, ___ U.S. ___, ___, 139 S. Ct. 2319, 2325-33 (2019) (holding that § 924(c)(3)(B)’s\\nresidual clause mandates the categorical approach and is unconstitutionally vague).\\n\\n This case concerns language similar to § 924(c)(3)(A)’s elements clause. McGuire’s\\ndetermination that § 924(c)(3)(A)’s elements clause requires the categorical approach was\\nunaffected by Ovalles and only reinforced by dicta in Davis. The Government conceded in\\nDavis that the categorical approach would apply to § 924(c)(3)(A)’s elements clause. See Davis,\\n___ U.S. at ___, 139 S. Ct. at 2328; id. at ___, 139 S. Ct. at 2339 (Kavanaugh, J., dissenting).\\nMoreover, the Court indicated in dicta that it agreed that the elements clause called for the\\ncategorical approach. Id. at 2328 (majority opinion) (“Consider the word ‘offense.’ It’s true that\\n‘in ordinary speech,’ this word can carry at least two possible meanings. It can refer to ‘a generic\\ncrime, say, the crime of fraud or theft in general,’ or it can refer to ‘the specific acts in which an\\noffender engaged on a specific occasion.’ . . . [E]veryone agrees that, in connection with the\\nelements clause, the term ‘offense’ carries the first ‘generic’ meaning. . . . The language of the\\nresidual clause itself reinforces the conclusion that the term ‘offense’ carries the same ‘generic’\\nmeaning throughout the statute.”).\\n 27\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 28 of 80\\n\\n\\nthe crime, in general, plausibly covers any non-violent conduct.” Id. at 1337.\\n\\nAfter concluding that all plausible applications of the statute required the use,\\n\\nattempted use, or threatened use of physical force, the Court held that the\\n\\ndefendant’s § 32(a)(1) conviction categorically qualified as a crime of violence\\n\\nunder § 924(c)(3)(A)’s elements clause. Id.\\n\\nB. Prior Panel Precedent Rule\\n\\n Under our prior panel precedent rule, we are bound to follow a prior panel’s\\n\\nholding unless and until it is overruled or undermined to the point of abrogation by\\n\\nan opinion of the Supreme Court or of this Court sitting en banc. United States v.\\n\\nArcher, 531 F.3d 1347, 1352 (11th Cir. 2008). The prior panel precedent rule\\n\\napplies regardless of whether the later panel believes the prior panel’s opinion to\\n\\nbe correct, and there is no exception to the rule where the prior panel failed to\\n\\nconsider arguments raised before a later panel. See Smith v. GTE Corp., 236 F.3d\\n\\n1292, 1301-03 (11th Cir. 2001) (“[W]e categorically reject any exception to the\\n\\nprior panel precedent rule based upon a perceived defect in the prior panel’s\\n\\nreasoning or analysis as it relates to the law in existence at that time.”). To\\n\\noverrule or abrogate a prior panel’s decision, the subsequent Supreme Court or en\\n\\nbanc decision “must be clearly on point” and must “actually abrogate or directly\\n\\nconflict with, as opposed to merely weaken, the holding of the prior panel.”\\n\\nUnited States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009) (internal quotation\\n\\n 28\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 29 of 80\\n\\n\\nmarks omitted).\\n\\n Here, there is no intervening Supreme Court or en banc decision to\\n\\nconsider. 11 Rather, the narrow question is whether our own McGuire panel\\n\\nprecedent binds us in this case. Our prior panel precedent rule “applies only to\\n\\nholdings, not dicta” in our prior opinions. United States v. Birge, 830 F.3d 1229,\\n\\n1232 (11th Cir. 2016). “The holding of a case comprises both the result of the case\\n\\nand those portions of the opinion necessary to that result.” United States v.\\n\\nCaraballo-Martinez, 866 F.3d 1233, 1244 (11th Cir.) (internal quotation marks\\n\\nomitted), cert. denied, 138 S. Ct. 566 (2017). But “[w]e have pointed out many\\n\\ntimes that regardless of what [our] court says in its opinion, the decision can hold\\n\\nnothing beyond the facts of that case.” Edwards v. Prime, Inc., 602 F.3d 1276,\\n\\n1298 (11th Cir. 2010) (collecting cases).\\n\\n In contrast, dicta is “a statement that neither constitutes the holding of a\\n\\ncase, nor arises from a part of the opinion that is necessary to the holding of the\\n\\ncase.” Black v. United States, 373 F.3d 1140, 1144 (11th Cir. 2004). Stated\\n\\nanother way, “dicta is defined as those portions of an opinion that are not necessary\\n\\nto deciding the case then before us.” Caraballo-Martinez, 866 F.3d at 1244\\n\\n(quoting Kaley, 579 F.3d at 1253 n.10); Obiter Dictum, Black’s Law Dictionary\\n\\n\\n\\n 11\\n As noted previously, supra note 10, McGuire’s determination with respect to the\\nelements clause was not affected by Ovalles and was only reinforced by Davis.\\n 29\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 30 of 80\\n\\n\\n(10th ed. 2014) (explaining that a statement is dictum if it is “unnecessary to the\\n\\ndecision in the case”); Bryan A. Garner, et al., The Law of Judicial Precedent 46\\n\\n(2016) (“Generally, a dictum is a statement in a judicial opinion that is unnecessary\\n\\nto the case’s resolution.”). “[W]e are not required to follow dicta contained in our\\n\\nown precedents.” McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1077 (11th\\n\\nCir. 1996).\\n\\nC. McGuire’s Binding Force in this Case\\n\\n We first conclude that McGuire’s categorical approach ruling—that the text\\n\\nof § 924(c)(3)(A)’s elements clause requires use of the categorical approach in\\n\\nanalyzing whether a felony offense qualifies as a crime of violence—was\\n\\n“necessary to [the] result,” and therefore part of the holding, in that case. See\\n\\nMcGuire, 706 F.3d at 1336-37; Caraballo-Martinez, 866 F.3d at 1244. The use of\\n\\nthe categorical approach in McGuire was not dicta because McGuire ruled that\\n\\n§ 924(c)(3)(A)’s statutory text required that it apply the categorical approach to\\n\\ndetermine whether a § 32(a)(1) conviction qualified as a crime of violence.\\n\\nMcGuire, 706 F.3d at 1336-38. At least in another § 924(c)(3)(A) case, it is clear\\n\\nthat McGuire’s use of the categorical approach is binding in evaluating the\\n\\n\\n\\n\\n 30\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 31 of 80\\n\\n\\npredicate crime. See Caraballo-Martinez, 866 F.3d at 1244; Archer, 531 F.3d at\\n\\n1352.\\n\\n The more precise and decisive question here, though, is whether McGuire’s\\n\\nholding—that § 924(c)(3)(A)’s statutory text requires a categorical approach—\\n\\nbinds us in this case, which arises under § 373. For several reasons, we conclude\\n\\nthat it does. Let’s compare the statutory text of § 924(c)(3)(A) and § 373\\n\\nside-by-side, as follows:\\n\\n § 924(c)(1)(A) & (c)(3)(A) § 373 makes it unlawful\\n makes it unlawful to use or to solicit another with the\\n carry a firearm during and intent that the other\\n in relation to a crime of person “engage in\\n violence, defined as “an conduct constituting a\\n offense that is a felony and felony that has as an\\n (A) has as an element the element the use,\\n use, attempted use, or attempted use, or\\n threatened use of physical threatened use of physical\\n force against the person or force against property or\\n property of another.” against the person of\\n another . . . , and under\\n circumstances strongly\\n corroborative of that\\n intent, solicits,\\n commands, induces, or\\n otherwise endeavors to\\n persuade such other\\n person to engage in such\\n conduct.”\\n\\n Both statutes use this same phrase: “a felony” that “has as an element the\\n\\nuse, attempted use, or threatened use of physical force.” Compare 18 U.S.C.\\n\\n\\n 31\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 32 of 80\\n\\n\\n§ 924(c)(3)(A), with 18 U.S.C. § 373(a). Section 373 was enacted as part of the\\n\\nComprehensive Crime Control Act of 1984, where the term “crime of violence”\\n\\nfinds its origins.12 Pub. L. 98-473, § 1003(a), 98 Stat. 1976, 2138 (1984). Nearly\\n\\nidentical elements clauses within § 924(c)(3)(A) and § 16’s definitions of “crime\\n\\nof violence,”13 which also find their origins in the Comprehensive Crime Control\\n\\nAct of 1984, have been interpreted to require the categorical approach. See United\\n\\nStates v. Davis, ___ U.S. ___, ___, 139 S. Ct. 2319, 2327-28 (2019) (§ 924(c));\\n\\nLeocal v. Ashcroft, 543 U.S. 1, 6, 125 S. Ct. 377, 381 (2004) (§ 16). Because “we\\n\\nnormally presume that the same language in related statutes carries a consistent\\n\\n\\n\\n\\n 12\\n The Comprehensive Crime Control Act not only added § 373 but also amended\\n§ 924(c) to add the term “crime of violence” and enacted 18 U.S.C. § 16’s definition of “crime of\\nviolence,” which contains a nearly identical elements clause. See Pub. L. 98-473, § 1003(a), 98\\nStat. 1976, 2138 (1984) (codified as amended at 18 U.S.C. § 373); id. § 1001(a), 98 Stat. at 2136\\n(codified at 18 U.S.C. § 16); id. § 1005(a), 98 Stat. at 2138 (codified as amended at 18 U.S.C.\\n§ 924(c)). Until § 924(c)’s subsequent amendment in 1986 to include a definition for crime of\\nviolence, which included its elements clause, its use of “crime of violence” in the 1984\\namendments was interpreted to refer to § 16’s general definition. See Davis, ___ U.S. at ___,\\n139 S. Ct. at 2330–31 (“The statutory term ‘crime of violence’ traces its origins to the\\nComprehensive Crime Control Act of 1984. There, Congress enacted the definition of ‘crime of\\nviolence’ in § 16. It also ‘employed the term “crime of violence” in numerous places in the Act,’\\nincluding in § 924(c). At that time, Congress didn’t provide a separate definition of ‘crime of\\nviolence’ in § 924(c) but relied on § 16’s general definition. The two statutes, thus, were\\noriginally designed to be read together.” (citations omitted)).\\n 13\\n The elements clause in § 16 provides in relevant part:\\n\\n The term “crime of violence” means –\\n\\n (a) an offense that has as an element the use, attempted use, or threatened\\n use of physical force.\\n\\n 32\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 33 of 80\\n\\n\\nmeaning,” Davis, ___ U.S. at ___, 139 S. Ct. at 2329, we construe § 373 to\\n\\nsimilarly require the categorical approach.\\n\\n While, as the government and our dissenting colleague point out, there are\\n\\nsome textual differences between § 373 and § 924(c)(3), we cannot find them\\n\\nsufficient for a panel to be able to write around our prior panel precedent in\\n\\nMcGuire, especially because both § 924(c)(3) and § 373 address contemporaneous\\n\\nconduct, not prior convictions. It is true that § 373 includes use of the word\\n\\n“conduct” whereas § 924(c)(3) does not. Compare § 373 (referencing “[w]hoever,\\n\\nwith intent that another person engage in conduct constituting a felony that has as\\n\\nan element”), with § 924(c)(3) (referring to commission of an offense that is a\\n\\nfelony and “has as an element”). However, there is little difference between\\n\\nsoliciting another to commit a felony that has as an element the use, attempted use,\\n\\nor threatened use of physical force and soliciting another to “engage in conduct\\n\\nconstituting a felony that has as an element the use, attempted use, or threatened\\n\\nuse of physical force.” The only difference is that the reference to the criminalized\\n\\nconduct in the former is implicit while the reference to conduct in the latter is\\n\\nexplicit. If Congress intended § 373 to be construed differently from § 924(c) and\\n\\n§ 16, we do not believe Congress would have used language which conveys almost\\n\\nthe same meaning as language which clearly calls for the categorical approach.\\n\\nMoreover, § 373 does not refer to just any conduct; it refers specifically to\\n\\n 33\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 34 of 80\\n\\n\\n“conduct constituting a felony that has as an element the use . . . of physical\\n\\nforce.” As noted above, established law in Davis and Leocal construe the\\n\\nlanguage—“felony that has as an element the use . . . of physical force”—as\\n\\nrequiring the categorical approach. Thus, § 373 does not refer to just any\\n\\n“conduct”; rather, it refers to “conduct” that constitutes a felony that requires a\\n\\ncategorical approach. We are not persuaded that the textual difference between\\n\\n§ 373 and § 924(c) indicates a departure from the categorical approach\\n\\ntraditionally required when considering an elements clause.\\n\\n Strong reasons based in the canons of statutory construction persuade us that\\n\\nwe cannot plausibly construe § 373 to avoid the categorical approach and permit\\n\\nconsideration only of the conduct charged in the particular case, as the dissent\\n\\nproposes. First, as noted above, the canon—presuming that language carries the\\n\\nsame meaning as does the same language in related statutes—and the fact that\\n\\n§ 373 was enacted as part of the Comprehensive Crime Control Act of 1984 along\\n\\nwith amendments to § 924(c) and the enactment of § 16—all including nearly\\n\\nidentical elements clauses—indicate that Congress intended § 373 should also be\\n\\nconstrued as requiring a categorical approach as do § 924(c) and § 16. Second, the\\n\\nphrase “that has as an element” modifies the immediately preceding word\\n\\n“felony”—not the more remote word “conduct.” See Antonin Scalia & Bryan A.\\n\\nGarner, Reading Law: The Interpretation of Legal Texts 152 (2012) (“When the\\n\\n 34\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 35 of 80\\n\\n\\nsyntax involves something other than a parallel series of nouns or verbs, a\\n\\nprepositive or postpositive modifier normally applies only to the nearest reasonable\\n\\nreferent.”). Third, the text of § 373 makes it absolutely clear that the elements\\n\\nclause—“that has as an element” —modifies the immediately preceding word\\n\\n“felony” and not the more remote word “conduct.” Conduct (i.e., underlying facts)\\n\\ncannot have constituent elements; only a felony’s legal definition can.\\n\\n “Elements” are the “constituent parts” of a crime’s legal definition—\\n the things the “prosecution must prove to sustain a conviction.” Black’s\\n Law Dictionary 634 (10th ed. 2014). At a trial, they are what the jury\\n must find beyond a reasonable doubt to convict the defendant, see\\n Richardson v. United States, 526 U.S. 813, 817, 119 S. Ct. 1707, 143\\n L.Ed.2d 985 (1999); and at a plea hearing, they are what the defendant\\n necessarily admits when he pleads guilty, see McCarthy v. United\\n States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L.Ed.2d 418 (1969). Facts,\\n by contrast, are mere real-world things—extraneous to the crime’s legal\\n requirements. (We have sometimes called them “brute facts” when\\n distinguishing them from elements. Richardson, 526 U.S., at 817, 119\\n S. Ct. 1707.) They are “circumstance[s]” or “event[s]” having no “legal\\n effect [or] consequence”: In particular, they need neither be found by a\\n jury nor admitted by a defendant. Black’s Law Dictionary 709.\\n\\nMathis v. United States, ___ U.S. ___, ___, 136 S. Ct. 2243, 2248 (2016). Thus,\\n\\nwe construe § 373’s phrase “felony that has as an element the use, attempted use,\\n\\nor threatened use of physical force” to refer categorically to the felony in question.\\n\\nThe categorical approach permits courts to look only to statutory definitions of the\\n\\ncrime. See Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct. 2143, 2160\\n\\n(1990). Of course, when the underlying crime arises from a divisible statute (a\\n\\nstatute defining multiple crimes by listing multiple, alternative elements), the\\n 35\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 36 of 80\\n\\n\\nmodified categorical approach may be applied, which permits courts to consult\\n\\nShepard 14 documents to determine which version of the underlying crime is at\\n\\nissue. See Mathis, ___ U.S. at ___, 136 S. Ct. at 2245; see also infra Section V.D.\\n\\n The dissent proposes a novel analysis. The dissent proposes, in effect, to\\n\\napply the modified categorical approach to an indivisible statute.15 Gillis is\\n\\ncharged with soliciting another to commit kidnapping under 18 U.S.C. §1201(a).\\n\\nAs we later demonstrate, see infra Section V.D., § 1201(a) is an indivisible statute,\\n\\nwhich the dissent effectively concedes. The dissent proposes to consider the actual\\n\\nconduct with which Gillis was charged, as evidenced by Shepard documents, and\\n\\nthen determine “whether that solicited ‘conduct’ constitutes a felony that has the\\n\\nuse, attempted use, or threatened use of force as an element.” The dissent’s\\n\\napproach necessarily treats the underlying felony at issue—here, § 1201(a)—as\\n\\ndivisible by looking to Shepard documents to rule out the indivisible means\\n\\n\\n\\n\\n 14\\n Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005).\\n 15\\n The dissent consults the indictment and jury instructions to rule out the indivisible\\nmeans “inveiglement” and “decoy” from its analysis. The modified categorical approach—i.e.,\\nthe use of Shepard documents like indictments and jury instructions to determine which of\\nseveral alternative elements were necessarily involved in the underlying felony—is permissible\\nonly in divisible statutes. See Mathis, ___ U.S. at ___, 136 S. Ct. at 2248-49. When the statute\\nat issue is indivisible, as is § 1201(a), Shepard documents may not be used to determine which of\\nseveral alternative means of committing the crime were involved in the underlying felony. See\\nid. at ___, 136 S. Ct. at 2253.\\n\\n 36\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 37 of 80\\n\\n\\n“inveigle” and “decoy” from consideration in step two of its analysis.16 We do not\\n\\nbelieve this approach to be consistent with Supreme Court precedent. See Mathis,\\n\\n___ U.S. at ___, 136 S. Ct. at 2253 (“‘[T]he only [use of the modified categorical\\n\\napproach] we have ever allowed,’ . . . is to determine ‘which element[s] played a\\n\\npart in the defendant’s conviction.’” (quoting Descamps v. United States, 570 U.S.\\n\\n254, 260, 263, 133 S. Ct. 2276, 2283, 2285 (2013)) (first and third alterations in\\n\\noriginal)).17\\n\\n Although there is some daylight between the § 373 and § 924(c)(3)(A) texts,\\n\\nthere is not enough for a panel of our Court to chart a new course and depart from\\n\\n\\n\\n\\n 16\\n The dissent does not ultimately decide whether it is proper to consider only Shepard\\ndocuments (e.g., the indictment and jury instructions) or the entire trial evidence. But it is clear\\nthat the dissent is considering the actual conduct of Gillis, and that is inconsistent with the\\ncategorical approach. And the dissent’s actual analysis focuses on kidnapping by unlawful\\nconfinement, which relies on the indictment, a Shepard document. That analysis assumes the\\nmodified categorical approach, which is impermissible in the context of an indivisible statute like\\n§ 1201(a).\\n 17\\n The dissent highlights that Mathis considered the ACCA, a statute that considers prior\\nconvictions rather than current conduct, and submits that this distinction supports its construction\\nof § 373. This past term in Davis, however, the Court held that the categorical approach applies\\nto § 924(c)—a statute that considers a crime currently before the court, not prior convictions.\\nLike § 924(c), § 373 also considers a crime currently before the court. We are thus not\\npersuaded by the dissent’s distinction. The dissent also asserts, with no supporting authority, that\\nthe Mathis rule—i.e, the use of Shepard documents to rely on a defendant’s actual conduct is\\npermissible only in divisible statutes—does not apply to § 373. To the extent the dissent relies\\non Mathis involving a prior conviction, the dissent’s position is undetermined by Davis. To the\\nextent that the dissent relies on § 373’s explicit reference to “conduct,” we disagree for the\\nreasons stated above—i.e., that the mere use of the term “conduct” in § 373 does not persuade us\\nthat we can depart from the categorical approach traditionally required when construing these\\nelements clauses.\\n\\n 37\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 38 of 80\\n\\n\\nMcGuire’s categorical approach when applying the elements clause in § 373. 18\\n\\nTherefore, we conclude that our McGuire precedent binds us to use the categorical\\n\\n\\n 18\\n Pursuant to the canons of statutory construction and for the reasons set out above, we\\nrespectfully do not believe that § 373 is most plausibly read as our dissenting colleague proposes.\\nThe core of the dissent’s position relies upon the fact that § 373 explicitly uses the word\\n“conduct” while § 924(c) does not. Contrary to the dissent’s suggestion with respect to the only\\ncanon on which it relies, we have not disregarded Congress’s use of the word “conduct” in\\n§ 373. Rather, we recognize that § 373 uses the word “conduct” while § 924(c) does not, but we\\ndo not believe that difference can bear the weight the dissent places on it. As set forth above,\\n§ 373 uses the word “conduct” but carries virtually the same meaning as the corresponding\\nsentences in § 924(c) and § 16, both of which clearly evoke the categorical approach. The only\\ndifference is that § 924(c) and § 16 only implicitly refer to conduct. Moreover, the reference to\\n“conduct” in § 373 specifically references only “conduct constituting a felony that has as an\\nelement the use . . . of physical force,”—i.e., “conduct” constituting a felony that requires a\\ncategorical approach. In light of the fact that §§ 373, 924(c), and 16 all include the prominent\\nand nearly identically worded elements clause that is the hallmark of the categorical approach,\\nand in light of the fact that those elements clauses all find their origins in the Comprehensive\\nCrime Control Act of 1984, we do not believe that Congress signaled the substantially different\\ninterpretation for § 373 that the dissent proposes.\\n\\n The dissent’s argument that § 373 does not include the word “conviction” or the word\\n“offense” has little force in light of the fact that § 373 does use the word “felony.” And the\\nstatute refers to a specific kind of felony—i.e., a “felony that has as an element the use . . . of\\nphysical force” (that is, a felony that requires a categorical approach.).\\n\\n Although we reject the dissent’s characterization of our focus as only on “a hypothetical\\ndefendant’s imagined conduct,” of course we do focus on “inveigle” and “decoy,” the least\\nculpable means of violating § 1201(a). This focus is required by the categorical approach. See\\ninfra Section V.D.\\n\\n Nor does the dissent’s citation to the legislative history of § 373 support its position.\\nAlthough the final version of § 373 no longer relied on the definition of “crime of violence” in\\n§ 16, it included its own requirement that the “felony” had to have “as an element,” the “use,\\nattempted use, or threatened use of physical force”—the very language which established law\\nconstrues as requiring the categorical approach.\\n\\n Under all the circumstances, we conclude that § 373 is most plausibly read as we set\\nforth, and not as our dissenting colleague proposes. However, to the extent that there is any\\nambiguity left, we believe the rule of lenity would indicate the categorical approach. The rule\\n“only applies if, after considering text, structure, history, and purpose, there remains a\\n‘grievous ambiguity or uncertainty in the statute,’ such that the Court must simply ‘guess as to\\nwhat Congress intended.’” Barber v. Thomas, 560 U.S. 474, 488, 130 S. Ct. 2499, 2508 (2010)\\n 38\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 39 of 80\\n\\n\\napproach to determine whether the solicited crime—here, § 1201(a) federal\\n\\nkidnapping—“has as an element the use, attempted use, or threatened use of\\n\\nphysical force” against another person or property, as required by § 373.\\n\\nD. Section 1201(a) Kidnapping\\n\\n In relevant part, the federal kidnapping statute provides:\\n\\n Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps,\\n abducts, or carries away and holds for ransom or reward or otherwise\\n any person, except in the case of a minor by the parent thereof . . . shall\\n be punished by imprisonment for any term of years or for life . . . .\\n\\n18 U.S.C. § 1201(a) (emphasis added). Two elements of § 1201(a) kidnapping are:\\n\\n(1) unlawfully seizing, confining, inveigling, decoying, kidnapping, abducting, or\\n\\ncarrying away the victim; and (2) holding the victim for ransom or reward or\\n\\notherwise. Id.; Chatwin v. United States, 326 U.S. 455, 459, 66 S. Ct. 233, 235\\n\\n(1946).19\\n\\n\\n\\n\\n(citations omitted). We do not believe a grievous ambiguity remains, but to the extent it does,\\nthe rule of lenity would require an interpretation favorable to Gillis—i.e., an interpretation\\ncalling for application of the categorical approach. See Leocal, 543 U.S. at 11 n.8, 125 S.Ct. at\\n384 n.8 (applying the rule of lenity in a very similar context.).\\n\\n 19\\n To be convicted of federal kidnapping, the offender’s conduct also must satisfy one of\\nthe jurisdictional elements in the statute, such as where the offender (1) willfully transports the\\nvictim in interstate or foreign commerce; (2) himself travels in interstate or foreign commerce in\\ncommitting or in furtherance of the offense; or (3) uses any means, facility, or instrumentality of\\ninterstate or foreign commerce in committing or in furtherance of the offense. 18 U.S.C.\\n§ 1201(a)(1). There is no challenge to the fact that the kidnapping conduct Gillis solicited would\\nsatisfy one of these jurisdictional elements.\\n 39\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 40 of 80\\n\\n\\n In applying the categorical approach to § 1201(a), we must first determine\\n\\nwhether the statutory phrase “unlawfully seizes, confines, inveigles, decoys,\\n\\nkidnaps, abducts, or carries away” lists divisible alternative elements defining\\n\\nseparate kidnapping crimes or is an indivisible list of factual means by which a\\n\\nsingle kidnapping crime may be committed. If these are alternative elements, then\\n\\nthe statute is divisible and the modified categorical approach, which permits\\n\\nconsulting Shepard documents, applies. See Cintron v. U.S. Att’y Gen., 882 F.3d\\n\\n1380, 1384 (11th Cir. 2018) (citing Descamps, 570 U.S. at 263, 133 S. Ct. at 2281,\\n\\n2285; Mathis v. United States, ___ U.S. ___, ___, 136 S. Ct. 2243, 2249 (2016)).\\n\\nIf these are illustrative means, then the statute is indivisible and the categorical\\n\\napproach, which does not permit consulting Shepard documents, applies. See\\n\\nMathis, ___ U.S. at ___, 136 S. Ct. at 2253-54; Descamps, 570 U.S. at 258, 133 S.\\n\\nCt. at 2282; Cintron, 882 F.3d at 1384, 1385 n.6.\\n\\n In determining whether a statutory provision lists alternative elements or\\n\\nillustrative means, we consider first the text of the statute, second relevant\\n\\ndecisional law, and third other evidence such as indictments and jury instructions.\\n\\nSee Cintron, 882 F.3d at 1385. “If these sources do not ‘speak plainly,’ courts\\n\\nmust resolve the inquiry in favor of indivisibility.” Id. Here, the text of § 1201(a)\\n\\nis strongly suggestive of indivisibility. As we explained in Cintron: “If, for\\n\\nexample, the statute provides for tiered punishments depending on particular\\n\\n 40\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 41 of 80\\n\\n\\nstatutory alternatives, the alternatives are elements. Conversely, if the statute is\\n\\n‘drafted to offer “illustrative examples,”’ those examples are means of committing\\n\\nthe offense, not elements.” Id. at 1385 (quoting and citing Mathis, ___ U.S. at ___,\\n\\n136 S. Ct. at 2256). The Supreme Court in Mathis described such a statute that\\n\\nenumerates various factual means of committing a single element:\\n\\n To use a hypothetical adapted from two of our prior decisions, suppose\\n a statute requires use of a “deadly weapon” as an element of a crime\\n and further provides that the use of a “knife, gun, bat, or similar\\n weapon” would all qualify. Because that kind of list merely specifies\\n diverse means of satisfying a single element of a single crime—or\\n otherwise said, spells out various factual ways of committing some\\n component of the offense—a jury need not find (or a defendant admit)\\n any particular item: A jury could convict even if some jurors\\n “conclude[d] that the defendant used a knife” while others “conclude[d]\\n he used a gun,” so long as all agreed that the defendant used a “deadly\\n weapon.”\\n\\nMathis, ___ U.S. at ___, 136 S. Ct. at 2249 (citing Richardson v. United States,\\n\\n526 U.S. 813, 817, 119 S. Ct. 1707, 1710 (1999); Descamps, 570 U.S. at 268-69,\\n\\n133 S. Ct. at 2288-89).\\n\\n Here, § 1201(a) specifies that whoever “unlawfully seizes, confines,\\n\\ninveigles, decoys, kidnaps, abducts, or carries away”—while also satisfying the\\n\\nother elements of the offense—“shall be punished by imprisonment for any term of\\n\\nyears or for life and, if the death of any person results, shall be punished by death\\n\\nor life imprisonment.” § 1201(a). These alternative means of establishing the first\\n\\nelement of kidnapping are “denominated as a single offense” and punished by the\\n\\n 41\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 42 of 80\\n\\n\\nsame penalty regardless of the means used. The diverse means of satisfying this\\n\\nelement include several that are nearly synonymous—inveigle and decoy, abduct\\n\\nand carry away—showing that a jury could convict even if some jurors concluded\\n\\nthat the defendant “inveigled” while others concluded that he “decoyed,” so long\\n\\nas all agreed that this first element was established. Accordingly, the text of\\n\\n§ 1201(a) suggests that the several methods of violating the statute are all factual\\n\\nmeans of accomplishing “kidnapping” rather than separate elements creating\\n\\nseveral distinct kidnapping offenses. See Cintron, 882 F.3d at 1385-86; see also\\n\\nUnited States v. St. Hubert, 909 F.3d 335, 348 (11th Cir. 2018) (determining that\\n\\n18 U.S.C. § 1951(b)(1)’s definition of “robbery” is indivisible because it sets out\\n\\nalternative means of committing the offense rather than setting out multiple\\n\\ndifferent robbery crimes), cert denied, 139 S. Ct. 1394 (2019).\\n\\n Relevant decisional law similarly suggests that § 1201(a) sets forth\\n\\nillustrative means and not alternative elements. In United States v. Boone, this\\n\\nCourt characterized inveigling or decoying “as means of kidnapping under the\\n\\nstatute,” and used the terms as interchangeable synonyms in describing\\n\\n“kidnappings accomplished solely by the seduction of victims.” See 959 F.2d\\n\\n1550, 1557 (11th Cir. 1992) (emphasis added) (internal quotation marks omitted).\\n\\nWhile we have not previously considered whether this statutory phrase describes\\n\\nmeans or elements (or, in other words, whether it is indivisible or divisible), the\\n\\n 42\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 43 of 80\\n\\n\\nonly court to consider the issue has concluded that the statute lists indivisible\\n\\nmeans. See United States v. Rubio, No. 1:08-CR-297-LJO-2, 2016 WL 6821854,\\n\\nat *8 (E.D. Cal. Nov. 17, 2016) (O’Neill, C.J.); United States v. Bustos, No. 1:08-\\n\\nCR-297-LJO-3, 2016 WL 6821853, at *8 (E.D. Cal. Nov. 17, 2016) (O’Neill,\\n\\nC.J.).\\n\\n Finally, the indictment in this case also indicates indivisibility. “[A]n\\n\\nindictment . . . could indicate, by referencing one alternative term to the exclusion\\n\\nof all others, that the statute contains a list of elements, each one of which goes\\n\\ntoward a separate crime.” Mathis, ___ U.S. at ___, 136 S. Ct. at 2257. The\\n\\nindictment in this case omitted “inveigles” and “decoys” and charged Gillis with\\n\\nsoliciting kidnapping “by seizing, confining, kidnapping, abducting, and carrying\\n\\naway.” The indictment in this case, in charging the § 373 offense, listed multiple\\n\\nmanners of carrying out the underlying § 1201(a) offense. The indictment in this\\n\\ncase did not list one term to the exclusion of all others, indicating that such terms\\n\\nare means, not elements. Moreover, some of the means listed in the indictment are\\n\\nnearly synonymous (i.e., abducting and carrying away) illustrating that a jury need\\n\\nnot agree on the specific means employed, just that the first element was satisfied.\\n\\nBecause all of the information before us points in the same direction, we have no\\n\\ntrouble concluding that § 1201(a) is indivisible and that the categorical, rather than\\n\\nthe modified categorical, approach applies.\\n\\n 43\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 44 of 80\\n\\n\\n In applying the categorical approach, “we must presume that the conviction\\n\\nrested upon [nothing] more than the least of th[e] acts criminalized, and then\\n\\ndetermine whether even those acts” qualify under § 373. See St. Hubert, 909 F.3d\\n\\nat 349 (quoting Moncrieffe v. Holder, 569 U.S. 184, 190-91, 133 S. Ct. 1678, 1684\\n\\n(2013)); United States v. Davis, 875 F.3d 592, 597 (11th Cir. 2017) (“If the statute\\n\\nis indivisible, we use the categorical approach. In that case a conviction under it\\n\\nqualifies as a violent felony only if all of the acts criminalized in the statute involve\\n\\nthe use of physical force against the person of another.”). Accordingly, in\\n\\nconsidering whether violations of § 1201(a) necessarily involve the “use, attempted\\n\\nuse, or threatened use of physical force against property or against the person of\\n\\nanother” as to qualify under § 373(a), we presume that the federal kidnapping\\n\\nconviction rested upon means of inveiglement and/or decoy—the least of the acts\\n\\ncriminalized by § 1201(a).20\\n\\nE. Physical Force Requirement\\n\\n With this least culpable conduct criminalized by § 1201(a) in mind, we must\\n\\nnow determine whether the offense necessarily “has as an element the use,\\n\\nattempted use, or threatened use of physical force against property or against the\\n\\nperson of another” as to satisfy § 373(a). In considering this question, we look to\\n\\n\\n 20\\n Of course, the least of the acts criminalized—inveiglement and decoy—suffices to\\ncommit the crime only if the other element—“holds for ransom or reward or otherwise”—is also\\nsatisfied. § 1201(a).\\n 44\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 45 of 80\\n\\n\\ncases considering the ACCA’s elements clause and § 921(a)(33)(A)’s\\n\\nmisdemeanor crime of domestic violence definition for guidance. This is because,\\n\\nfirst, those statutes have similar force clauses to § 373(a). Compare 18 U.S.C.\\n\\n§ 373(a) (“the use, attempted use, or threatened use of physical force against\\n\\nproperty or against the person of another”), with 18 U.S.C. § 924(e)(2)(B)(i) (“the\\n\\nuse, attempted use, or threatened use of physical force against the person of\\n\\nanother”), and 18 U.S.C. § 921(a)(33)(A) (“the use or attempted use of physical\\n\\nforce”). Second, all the relevant statutes contemplate violent force. Compare 18\\n\\nU.S.C. § 373 (titled “Solicitation to commit a crime of violence”), with 18 U.S.C.\\n\\n§ 924(e)(2)(B) (defining “violent felony”), and 18 U.S.C. § 921(a)(33)(A)\\n\\n(defining “misdemeanor crime of domestic violence”).\\n\\n The Supreme Court, in Curtis Johnson v. United States, considered the\\n\\nmeaning of “physical force” within the ACCA’s elements clause. 559 U.S. 133,\\n\\n138, 130 S. Ct. 1265, 1270 (2010). The Court stated that “[t]he adjective\\n\\n‘physical’ is clear in meaning . . . . It plainly refers to force exerted by and through\\n\\nconcrete bodies—distinguishing physical force from, for example, intellectual\\n\\nforce or emotional force.” Id.; see also Stokeling v. United States, ___ U.S. ___,\\n\\n___, 139 S. Ct. 544, 552 (2019) (stating the same). The Supreme Court, in United\\n\\nStates v. Castleman extended this observation to § 921(a)(33)(A)’s misdemeanor\\n\\ncrime of violence definition. 572 U.S. 157, 170, 134 S. Ct. 1405, 1414 (2014).\\n\\n 45\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 46 of 80\\n\\n\\nWe accordingly have no trouble concluding that § 373(a)’s reference to “physical\\n\\nforce” also “refers to force exerted by and through concrete bodies—distinguishing\\n\\nphysical force from, for example, intellectual force or emotional force.” See Curtis\\n\\nJohnson, 559 U.S. at 138, 130 S. Ct. at 1270.\\n\\n The next question is whether § 1201(a) kidnapping by means of\\n\\ninveiglement or decoy categorically involves the use, attempted use, or threatened\\n\\nuse of physical force sufficient to satisfy § 373(a)’s force clause.\\n\\nF. Kidnapping by Means of Inveiglement or Decoy\\n\\n We first pause to define “inveigle” and “decoy.” The New Oxford\\n\\nAmerican Dictionary defines “inveigle” as to “persuade (someone) to do\\n\\nsomething by means of deception or flattery” while Merriam-Webster’s Collegiate\\n\\nDictionary defines it as “to win over by wiles” and “to acquire by ingenuity or\\n\\nflattery.” New Oxford American Dictionary 913 (3d ed. 2010); Merriam-\\n\\nWebster’s Collegiate Dictionary 616 (10th ed. 1999). As to “decoy,” the New\\n\\nOxford American Dictionary defines it as to “lure or entice (a person or animal)\\n\\naway from an intended course, typically into a trap” while Merriam-Webster’s\\n\\nCollegiate Dictionary defines it as “to lure by or as if by a decoy.” New Oxford\\n\\nAmerican Dictionary 451 (3d ed. 2010); Merriam-Webster’s Collegiate Dictionary,\\n\\n300 (10th ed. 1999). The plain meanings of “inveigle” and “decoy” indicate that\\n\\nthese means of violating the federal kidnapping statute require intellectual or\\n\\n 46\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 47 of 80\\n\\n\\nemotional force, distinct from the requisite physical force required to satisfy\\n\\n§ 373(a)’s force clause.\\n\\n Next, we look to case law considering kidnapping by means of inveiglement\\n\\nand/or decoy prosecuted under § 1201(a) to determine whether the statute\\n\\nnecessarily requires physical force as opposed to intellectual or emotional force.\\n\\n The Supreme Court in Chatwin v. United States reversed the defendants’\\n\\nfederal kidnapping convictions because there was no evidence that the victim was\\n\\n“held” against her will. See 326 U.S. 455, 460-62, 66 S. Ct. 233, 235-36 (1946).\\n\\nDefendant Chatwin, a 68-year-old man, hired a 15-year-old girl, Dorothy Wyler, as\\n\\nhis live-in housekeeper and taught Wyler that plural marriage conformed with the\\n\\ntrue principles of the Mormon faith. Id. at 457, 66 S. Ct. at 234. Wyler entered\\n\\ninto a “celestial marriage” with Chatwin and became pregnant. Id. at 457-58, 66\\n\\nS. Ct. at 234.\\n\\n Wyler’s parents informed the authorities, who took Wyler into juvenile\\n\\ncustody. Id. at 458, 66 S. Ct. at 234. Later, after being dropped off at a movie\\n\\ntheatre by a juvenile probation officer, Wyler left the theatre and ultimately\\n\\ntraveled to Mexico to be legally married to Chatwin. Id. at 458, 66 S. Ct. at 234-\\n\\n35. Subsequently, Wyler and Chatwin traveled back to Utah and then to Arizona,\\n\\nwhere federal authorities eventually found them living under assumed names. Id.\\n\\nat 458, 66 S. Ct. at 235. Chatwin and two codefendants, who had traveled to\\n\\n 47\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 48 of 80\\n\\n\\nMexico with Wyler, were convicted of kidnapping Wyler. Id. at 458-59, 66 S. Ct.\\n\\nat 235.\\n\\n Reversing the convictions, the Supreme Court explained that the kidnapping\\n\\nstatute “contemplates that the kidnapped victim shall have been (1) unlawfully\\n\\nseized, confined, inveigled, decoyed, kidnapped, abducted, or carried away by any\\n\\nmeans whatsoever and (2) held for ransom or reward or otherwise.” Id. at 459,\\n\\n465, 66 S. Ct. at 235, 237 (internal quotation marks omitted). The government\\n\\nargued that both elements were met, asserting that the defendants unlawfully\\n\\n“inveigled” or “decoyed” Wyler away from the custody of her parents and the\\n\\njuvenile court authorities and that she was “held” during the period between her\\n\\nescape from juvenile custody and her trip to Mexico to marry Chatwin. Id. at 459,\\n\\n66 S. Ct. at 235. The Supreme Court rejected those arguments, holding that the\\n\\ngovernment failed to prove that Wyler was “held” within the meaning of the\\n\\nkidnapping statute. Id. at 460, 66 S. Ct. at 235.\\n\\n The Supreme Court explained that:\\n\\n The act of holding a kidnapped person . . . necessarily implies\\n an unlawful physical or mental restraint for an appreciable period\\n against the person’s will and with a willful intent so to confine the\\n victim.\\n\\nId. (emphasis added). There was no evidence in Chatwin that the defendants\\n\\n“imposed at any time an unlawful physical or mental restraint upon [Wyler’s]\\n\\nmovements” or that “she was deprived of her liberty, compelled to remain where\\n 48\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 49 of 80\\n\\n\\nshe did not wish to remain, or compelled to go where she did not wish to go.” Id.\\n\\nIn other words, the government failed to prove an act of unlawful restraint because\\n\\nthere was no proof that the defendants “willfully intended through force, fear or\\n\\ndeception to confine [Wyler] against her desires.” Id. at 460, 66 S. Ct. at 235-36.\\n\\n While not addressing whether the first element of kidnapping can be\\n\\nsatisfied by means of inveiglement and/or decoy not involving the use, threatened\\n\\nuse, or attempted use of physical force, Chatwin makes clear that the second\\n\\n“holding” element may be satisfied by use of “physical or mental restraint.” It\\n\\nmakes clear that the second element (the “holding” requirement) of federal\\n\\nkidnapping can encompass intellectual or emotional force of the type distinguished\\n\\nfrom the requisite “physical force” in Curtis Johnson. See 559 U.S. at 138, 130\\n\\nS. Ct. at 1270.\\n\\n Next, the federal kidnapping considered in United States v. Boone, 959 F.2d\\n\\n1550 (11th Cir. 1992), similarly involved “inveiglement” or “decoy” under\\n\\n§ 1201(a) with no physical restraint of the victim. In Boone, the defendant Boone\\n\\nand the victim Jonathan Wood drank and used drugs together, and Boone later\\n\\nconvinced Wood to travel with him to Georgia, falsely telling Wood of a marijuana\\n\\npatch located there. Id. at 1552. The men drove to Georgia in victim Wood’s car\\n\\nwith Boone at the wheel. Id. In a rural area in Georgia, Boone and Wood\\n\\nproceeded on foot into a wooded area, at which time Boone “borrowed” Wood’s\\n\\n 49\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 50 of 80\\n\\n\\nknife. Id. at 1553. After walking some distance, the victim Wood realized that he\\n\\nhad been deceived and there was no marijuana patch. Id. Boone then stabbed\\n\\nWood, tied him up, and left him to die. Id.\\n\\n This Court determined that there was sufficient evidence to support Boone’s\\n\\n§ 1201 kidnapping conviction.21 Id. at 1557. We explained that inveigling or\\n\\ndecoying someone across state lines alone does not constitute kidnapping. Id. at\\n\\n1555. Rather, kidnapping by inveiglement occurs when “the alleged kidnapper had\\n\\nthe willingness and intent to use physical or psychological force to complete the\\n\\nkidnapping in the event that his deception failed.” Id. (emphasis added). In other\\n\\nwords, “[w]here an inveiglement occurs and force is held in reserve only because\\n\\nthe kidnapper’s deception is operating successfully, an unlawful interference with\\n\\nthe actions of another has occurred—whether or not that person is aware of the\\n\\ninterference—such that a kidnapping and holding has occurred under the statute.”\\n\\nId. at 1556.\\n\\n Applying those principles, this Court concluded that Boone’s conduct\\n\\nconstituted a kidnapping by inveiglement despite the fact that “force was not used\\n\\nprior to the crossing of state lines.” Id. We explained that Boone inveigled Wood\\n\\n\\n\\n 21\\n Although the Boone Court concluded that there “was indeed sufficient evidence for a\\nproperly instructed jury to have convicted the defendant” of kidnapping, the Court remanded\\nBoone’s case for a new trial because the district court did not properly instruct the jury on the\\nintent element of Boone’s kidnapping offense. Boone, 959 F.2d at 1557-58.\\n 50\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 51 of 80\\n\\n\\ninto driving to Georgia and then traveled with him, even driving Wood’s car. Id.\\n\\nThus, Boone remained at all times “in a position where he could use force to\\n\\nensure the kidnapping and transporting of Wood to the remote site where the\\n\\nmurder . . . would take place.” Id. We noted that Boone had placed Wood under\\n\\nboth mental and physical restraints resulting from “the deception Boone created\\n\\nand from Boone’s apparent willingness to use force to keep Wood restrained.”\\n\\nId. 22\\n\\n In reaching this conclusion, the Boone Court distinguished our prior\\n\\nprecedent in United States v. McInnis, 601 F.2d 1319 (5th Cir. 1979),23 in which\\n\\nthe victim was lured from Texas to Mexico, but the victim traveled alone. Boone,\\n\\n959 F.2d at 1556. In the event the victim was not successfully tricked into going to\\n\\nMexico, there were no further steps, forcible or otherwise, to kidnap him. Id. The\\n\\nformer Fifth Circuit stated that the entirely voluntary act of a victim in crossing\\n\\nstate lines does not violate the kidnapping statute even if it was induced by\\n\\ndeception. Id. at 1557.\\n\\n\\n 22\\n Quoting Boone, the Annotations and Comments to this Court’s pattern jury instruction\\non § 1201(a) kidnapping state: “‘Inveiglement’ becomes unlawful under the federal kidnapping\\nstatute, ‘when the alleged kidnapper interferes with his victim’s action, exercising control over\\nhis victim through the willingness to use forcible action should his deception fail.’” Eleventh\\nCircuit Pattern Jury Instructions (Criminal Cases) O49 (2016) (quoting Boone, 959 F.2d at 1555\\nn.5).\\n 23\\n In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this\\nCourt adopted as binding precedent all decisions of the former Fifth Circuit handed down prior\\nto October 1, 1981.\\n 51\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 52 of 80\\n\\n\\n The Boone Court explained that because the victim in McInnis was\\n\\nsupposed to travel alone in crossing state lines, the victim was not “continually\\n\\nsubjected to a kidnapper’s ongoing efforts to maintain the deception and advance\\n\\nthe intended kidnapping.” Id. In other words, the McInnis kidnappers “did not\\n\\nstand ready to use force against their victim, thereby exercising control over him.”\\n\\nId. By contrast, in a case like Boone’s where the kidnapper accompanies the\\n\\ninveigled victim, “[t]he victim is kept from acting in an entirely voluntary manner\\n\\nby the acts, presence, and intent of his inveigling kidnapper.” Id.\\n\\n Boone demonstrates that a federal kidnapping conviction may be sustained\\n\\nwhere kidnapping by means of inveiglement or decoy has occurred without the use\\n\\nof force and where the kidnapper has “the willingness and intent to use physical or\\n\\npsychological force to complete the kidnapping in the event that his deception\\n\\nfailed.” Id. at 1555 (emphasis added). The victim in Boone was inveigled and\\n\\ndecoyed across state lines without the use of physical force. Id. at 1552-53. This\\n\\nCourt determined that it is up to the fact finder to determine whether the kidnapper\\n\\nheld physical or psychological force in reserve “in the event that his deception\\n\\nfailed.” Id. at 1555. Accordingly, Boone makes clear that federal kidnapping may\\n\\nbe committed by means of inveiglement and/or decoy (without the use of physical\\n\\nforce) and then maintained solely by psychological force.\\n\\n\\n\\n 52\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 53 of 80\\n\\n\\n Cases from our sister circuits similarly demonstrate that § 1201(a) can be\\n\\nviolated without the use of physical force. See United States v. Jenkins, 849 F.3d\\n\\n390, 393-94 (7th Cir. 2017) (holding that § 1201(a) kidnapping can be committed\\n\\n“without using, threatening to use, or attempting to use physical force”), judgment\\n\\nvacated on other grounds, 138 S. Ct. 1980 (2018); United States v. Lentz, 383 F.3d\\n\\n191, 203-04 (4th Cir. 2004) (reversing a grant of judgment of acquittal where the\\n\\ndefendant, without physical force, inveigled the victim into traveling across state\\n\\nlines and there was circumstantial evidence that “unlawful physical or mental\\n\\nrestraint” was used to hold the victim); United States v. Wills, 234 F.3d 174, 177\\n\\n(4th Cir. 2000) (“By its terms, § 1201(a) criminalizes kidnappings accomplished\\n\\nthrough physical, forcible means and also by nonphysical, non-forcible means.”);\\n\\nUnited States v. Garcia, 854 F.2d 340, 344-45 (9th Cir. 1988) (holding that a\\n\\nkidnapping continued past the date the defendant told the victim to leave, even\\n\\nthough no force was used after this date, because the psychological effects of the\\n\\nkidnapping persisted). 24\\n\\n The above-discussed cases leave no doubt that § 1201(a) convictions can be\\n\\nsustained in cases where physical force was not used. Beyond those cases, we\\n\\nfurther believe that there is a realistic probability that future federal prosecutions\\n\\n\\n\\n 24\\n See also Delgado-Hernandez v. Holder, 697 F.3d 1125, 1130 (9th Cir. 2012) (stating in\\ndicta that “[t]he federal kidnapping statue has no force requirement.”).\\n 53\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 54 of 80\\n\\n\\ncould charge defendants who have not used physical force with violating\\n\\n§ 1201(a). See United States v. Vail-Bailon, 868 F.3d 1293, 1306 (11th Cir. 2017)\\n\\n(considering hypotheticals proffered by defendant to determine whether Florida\\n\\nfelony battery was a crime of violence). A hypothetical discussed at oral argument\\n\\nprovides a persuasive example of this realistic probability. Consider the following\\n\\nscenario involving a grandparent (A); the grandparent’s child (B); and (C), the\\n\\nchild of B and grandchild of A. A perceives B as an unfit parent, not living up to\\n\\nA’s perception of good parenting (or perhaps influenced by in-law or other\\n\\ndomestic tensions). A decides to intervene and absconds with C, holding C against\\n\\nthe wishes of B and saying that C will be returned to B when B reforms and\\n\\nconforms to A’s perception of a fit parent. In this hypothetical situation, it is\\n\\nentirely feasible that A might abscond with C by inveiglement and hold C using\\n\\npsychological force only—all without the use, threatened use, or attempted use of\\n\\nphysical force against either B or C. 25 We do not believe this hypothetical is of the\\n\\n“far-fetched” variety that this Court has declined to treat as indicating that a statute\\n\\n\\n 25\\n The second element of § 1201(a)—holding “for ransom or reward or otherwise”—is\\neasily satisfied by this hypothetical as it merely requires that the captor seeks to “secure some\\nbenefit to himself.” Gooch v. United States, 297 U.S. 124, 128, 56 S. Ct. 395, 397 (1936).\\n“Otherwise” has been construed broadly to cover many sought benefits. See United States v.\\nSatterfield, 743 F.2d 827, 849-50 (11th Cir. 1984) (determining that kidnapping an individual to\\nsilence them as a potential witness satisfied the “or otherwise” requirement), superseded by\\nstatute on other grounds as recognized by United States v. Edwards, 728 F.3d 1286, 1292 (11th\\nCir. 2013); see also United States v. Smith, 831 F.3d 793, 802 (7th Cir. 2016) (finding “or\\notherwise” to be satisfied where the defendant kidnapped an infant because she wanted a baby);\\nUnited States v. Montgomery, 635 F.3d 1074, 1086 (8th Cir. 2011) (same).\\n 54\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 55 of 80\\n\\n\\ncan be violated in a non-physically forceful manner. See, e.g., id. at 1305.\\n\\nMoreover, innumerable courts (including those discussed above) have followed the\\n\\nSupreme Court in Chatwin in expressly contemplating that the federal kidnapping\\n\\ncrime can be committed by mere inveiglement and holding the victim by either\\n\\nphysical or psychological force. These cases did not involve far-fetched situations;\\n\\nthey demonstrate the realistic probability of future prosecutions of § 1201(a) where\\n\\nthere has been no use, threatened use, or attempted use of physical force.\\n\\n Because § 1201(a) can be violated without the “use, attempted use, or\\n\\nthreatened use of physical force against property or against the person of another”\\n\\nas required by § 373(a)’s force clause, and because we know from Curtis Johnson\\n\\nand its progeny that “physical force” does not include “intellectual force or\\n\\nemotional force,” we conclude that Gillis’s § 373 conviction must be reversed. We\\n\\ndo not reach this conclusion lightly. Undoubtedly, many and perhaps even most\\n\\nfederal kidnappings do, as a factual matter, involve uses of force against the\\n\\nvictim. See, e.g., United States v. Adams, 83 F.3d 1371, 1372 (11th Cir. 1996)\\n\\n(defendant husband kidnapped his wife by attempting to force her into her car and\\n\\nshooting her in the abdomen when she broke free and began to run away).\\n\\nHowever, binding precedent requires that we apply the categorical approach and\\n\\nclose our eyes to Gillis’s actual conduct. And in deciding whether § 1201(a)\\n\\nkidnapping can realistically be committed without the use, threatened use, or\\n\\n 55\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 56 of 80\\n\\n\\nattempted use of physical force, we cannot close our eyes to the fact that the\\n\\nSupreme Court has said that it can be committed using either physical or mental\\n\\nrestraint and that numerous circuit courts have followed suit.\\n\\n For the foregoing reasons, the judgment of the district court is\\n\\n AFFIRMED IN PART AND REVERSED IN PART.\\n\\n\\n\\n\\n 56\\n\\n Case: 16-16482 Date Filed: 09/13/2019 Page: 57 of 80\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4495,"cells":{"id":{"kind":"number","value":4661573,"string":"4,661,573"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Kyle Adam Kirby"},"decision_date":{"kind":"string","value":"2019-09-17"},"docket_number":{"kind":"string","value":"18-11253"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and ROBRENO,* District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"WILLIAM PRYOR, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 18-11253 Date Filed: 09/17/2019 Page: 1 of 9\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-11253\\n ________________________\\n\\n D.C. Docket No. 3:15-cr-00175-TJC-JRK-1\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellee,\\n versus\\n\\nKYLE ADAM KIRBY,\\n\\n Defendant-Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n _______________________\\n\\n (September 17, 2019)\\n\\nBefore WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and ROBRENO,*\\nDistrict Judge.\\n\\nWILLIAM PRYOR, Circuit Judge:\\n\\n\\n\\n\\n *\\n Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of\\nPennsylvania, sitting by designation.\\n\\f Case: 18-11253 Date Filed: 09/17/2019 Page: 2 of 9\\n\\n\\n This appeal requires us to decide whether the United States Sentencing\\n\\nGuidelines cap an otherwise recommended sentence of life imprisonment at 470\\n\\nmonths when the statute of conviction does not allow a sentence of a life term. A\\n\\njury convicted Kyle Adam Kirby of five counts relating to the production and\\n\\npossession of child pornography. At sentencing, Kirby’s total offense level was 43,\\n\\nwhich means that the Guidelines ordinarily recommended a sentence of a life term.\\n\\nBut because the statutory maximum punishment for Kirby’s crimes was less than a\\n\\nlife term, the district court concluded that the Guidelines recommended\\n\\nconsecutive terms of the maximum sentence for each count of conviction. The\\n\\ndistrict court then adopted this recommendation and sentenced Kirby to 1440\\n\\nmonths of imprisonment. Kirby argues that the correct sentence is 470 months of\\n\\nimprisonment because the United States Sentencing Commission equates a life\\n\\nsentence to that term for statistical purposes. He also contends that his sentence\\n\\nwas substantively unreasonable. We disagree and affirm Kirby’s sentence.\\n\\n I. BACKGROUND\\n State and federal law enforcement officers traced 28 video files and 90\\n\\nimages depicting child pornography to the Internet protocol address of Kyle Adam\\n\\nKirby, a sergeant with the Live Oak Police Department. A later investigation by\\n\\nthe Federal Bureau of Investigation uncovered over 200 images of children being\\n\\nsexually abused on the laptop computer assigned to Kirby’s patrol vehicle. Kirby,\\n\\n\\n\\n 2\\n\\f Case: 18-11253 Date Filed: 09/17/2019 Page: 3 of 9\\n\\n\\nwho was by then suspended from his job, responded by asking Sergeant Derick\\n\\nSlaughter to erase the files from his account on the department’s desktop computer.\\n\\nInstead of deleting Kirby’s files, Slaughter searched Kirby’s account and found an\\n\\nimage of a nude, prepubescent boy. Slaughter reported the image to the police\\n\\nchief, who approved a search of the computer. A forensic analysis of the computer\\n\\nproduced at least 80 images of child pornography or child erotica. Most of these\\n\\nimages were of Kirby’s thirteen-year-old stepdaughter, either captured by hidden\\n\\ncameras in bathrooms or taken while Kirby was assisting his stepdaughter with\\n\\nstretches due to a sports injury. The computer also contained a pornographic image\\n\\nof a friend of Kirby’s stepdaughter.\\n\\n A grand jury charged Kirby with three counts of sexual exploitation of\\n\\nchildren for the purpose of producing child pornography, 18 U.S.C. § 2251(a), (e),\\n\\nand two counts of possessing with intent to view material involving minors\\n\\nengaged in sexually explicit conduct, 18 U.S.C. § 2252(a)(4)(B), (b)(2). Following\\n\\ntrial, a jury found Kirby guilty on all counts.\\n\\n Using the 2016 edition of the United States Sentencing Guidelines, the\\n\\nprobation officer assigned Kirby a total offense level of 43 and a criminal-history\\n\\ncategory of I. The district court accepted this calculation without objection from\\n\\neither party. As the district court explained, the Guidelines ordinarily recommend a\\n\\nlife sentence for this offense level. See United States Sentencing Guidelines\\n\\n\\n\\n 3\\n\\f Case: 18-11253 Date Filed: 09/17/2019 Page: 4 of 9\\n\\n\\nManual ch. 5 pt. A (Nov. 2016). But because none of the counts of conviction\\n\\nallowed for life imprisonment, the district court concluded that the Guidelines\\n\\nrecommended “taking the maximum for each count . . . and adding them together\\n\\nfor a sentence.” Again without objection, the district court then calculated the\\n\\nguidelines sentence as 1440 months. And after considering the statutory sentencing\\n\\nfactors, 18 U.S.C. § 3553(a), the district court sentenced Kirby to 1440 months of\\n\\nimprisonment.\\n\\n II. STANDARD OF REVIEW\\n\\n We review an interpretation of the Sentencing Guidelines de novo. United\\n\\nStates v. Whyte, 928 F.3d 1317, 1327 (11th Cir. 2019). We review the substantive\\n\\nreasonableness of a sentence for abuse of discretion. United States v. Duperval,\\n\\n777 F.3d 1324, 1331 (11th Cir. 2015). We will reverse for abuse of discretion only\\n\\nif “we are left with the definite and firm conviction that the district court\\n\\ncommitted a clear error of judgment in weighing the [section] 3553(a) factors by\\n\\narriving at a sentence that lies outside the range of reasonable sentences dictated by\\n\\nthe facts of the case.” Id. (internal quotation marks omitted).\\n\\n III. DISCUSSION\\n\\n For the first time on appeal, Kirby argues that the district court committed\\n\\nprocedural error by calculating the guidelines sentence as consecutive terms of the\\n\\nmaximum sentence for each count of conviction. As a fallback position, he\\n\\n\\n\\n 4\\n\\f Case: 18-11253 Date Filed: 09/17/2019 Page: 5 of 9\\n\\n\\ncontends that his sentence was substantively unreasonable. We address each\\n\\nargument in turn.\\n\\n A. The District Court Did Not Err When It Calculated the Guidelines\\n Sentence.\\n Kirby argues for the first time on appeal that the district court incorrectly\\n\\ncalculated the guidelines sentence. His failure to object in the district court would\\n\\nordinarily mean that we review for plain error, United States v. Corbett, 921 F.3d\\n\\n1032, 1037 (11th Cir. 2019), but because no error occurred we need not decide\\n\\nwhether the alleged error was plain or affected Kirby’s substantial rights.\\n\\n As Kirby concedes, his total offense level and criminal-history category\\n\\nwould ordinarily call for life imprisonment. U.S.S.G. ch. 5 pt. A. But none of\\n\\nKirby’s offenses carried a possible life sentence. See 18 U.S.C. § 2251(e)\\n\\n(imposing a maximum sentence of 30 years); id. § 2252(b)(2) (imposing maximum\\n\\nsentences of 10 and 20 years). So the district court applied section 5G1.2(d) of the\\n\\nGuidelines, which explains what to do in that circumstance:\\n\\n If the sentence imposed on the count carrying the highest statutory\\n maximum is less than the [ordinary guidelines recommendation], then\\n the sentence imposed on one or more of the other counts shall run\\n consecutively, but only to the extent necessary to produce a combined\\n sentence equal to the [ordinary guidelines recommendation].\\n\\n The parties agree that section 5G1.2(d) controls our decision. They dispute\\n\\nwhat sentence is “equal to” life imprisonment. The district court adopted a\\n\\nstraightforward understanding of a life sentence—that is, indefinite in duration. So\\n\\n\\n 5\\n\\f Case: 18-11253 Date Filed: 09/17/2019 Page: 6 of 9\\n\\n\\nit concluded that the Guidelines recommended consecutive terms of the statutory\\n\\nmaximums for each count of conviction, the closest sentence to life that the law\\n\\nallowed. The maximum terms for Kirby’s five counts of conviction collectively\\n\\nproduced a sentence of 1440 months of imprisonment. But Kirby contends that a\\n\\nlife sentence converts to 470 months. He explains that the United States Sentencing\\n\\nCommission defines a “life sentence” for statistical purposes as 470 months, “a\\n\\nlength consistent with the average life expectancy of federal criminal offenders.”\\n\\nU.S. Sentencing Comm’n, Sourcebook of Federal Sentencing Statistics 166 (2017).\\n\\n The district court correctly interpreted the Guidelines. “[T]he language of\\n\\nthe Sentencing Guidelines, like the language of a statute, must be given its plain\\n\\nand ordinary meaning.” United States v. Whatley, 719 F.3d 1206, 1222 (11th Cir.\\n\\n2013) (internal quotation marks omitted). And the meaning of life imprisonment is\\n\\nclear: “Confinement of a person in prison for the remaining years of his or her\\n\\nnatural life.” Life Imprisonment, Black’s Law Dictionary (11th ed. 2019). By\\n\\ndefinition, life imprisonment lacks a fixed term. So the district court correctly\\n\\ncombined the statutory maximum for each count of conviction to set Kirby’s\\n\\nguideline sentence at 1440 months of imprisonment, the closest available sentence\\n\\nto indefinite incarceration. See U.S.S.G. § 5G1.1(a) (“Where the statutorily\\n\\nauthorized maximum sentence is less than the minimum of the applicable guideline\\n\\nrange, the statutorily authorized maximum sentence shall be the guideline\\n\\n\\n\\n 6\\n\\f Case: 18-11253 Date Filed: 09/17/2019 Page: 7 of 9\\n\\n\\nsentence.”); see also United States v. Sarras, 575 F.3d 1191, 1208–09, 1219–20 &\\n\\nn.22 (11th Cir. 2009) (concluding that a sentence of 1200 months of imprisonment\\n\\nfell within the Guidelines when the Guidelines called for a life sentence but the\\n\\ncounts of conviction did not permit life).\\n\\n The definition of life imprisonment in the statistical sourcebook published\\n\\nby the Sentencing Commission does not alter this conclusion. To start, the\\n\\nstatistical sourcebook is not part of the Sentencing Guidelines. The Commission\\n\\npublishes the sourcebook based on its authority to collect and publish data on the\\n\\nsentencing process. See Sourcebook of Federal Sentencing Statistics, supra, at s-1\\n\\n(citing 28 U.S.C. § 995(a)(12)–(16)). The report also satisfies the Commission’s\\n\\nobligation to provide an annual report of sentencing data to the United States\\n\\nAttorney General. See id. (citing 28 U.S.C. § 994(w)(4)). But the sourcebook does\\n\\nnot amend or redefine the Guidelines in any way, which would require the\\n\\nCommission to approve it by an affirmative vote and submit it to Congress for\\n\\nreview. See 28 U.S.C. § 994(a), (p). As the First Circuit has held, “[t]hough 470\\n\\nmonths may be an accurate statistical representation of the actual length of many\\n\\nlife sentences—and may indeed be equivalent to a life sentence for many\\n\\nindividuals—there is no ‘cap’ within the Guidelines that limits life sentences to\\n\\n470 months.” United States v. Breton, 740 F.3d 1, 22 (1st Cir. 2014). And although\\n\\none circuit has approved the use of 470 months as a baseline to calculate a\\n\\n\\n\\n 7\\n\\f Case: 18-11253 Date Filed: 09/17/2019 Page: 8 of 9\\n\\n\\nreduction in a sentence for substantial assistance to the government, United States\\n\\nv. Keller, 413 F.3d 706, 711 (8th Cir. 2005); see also United States v. Nelson, 491\\n\\nF.3d 344, 349–50 (7th Cir. 2007) (suggesting the same in dicta), no circuit has\\n\\ndefined life imprisonment as 470 months.\\n\\n The Supreme Court has described a life sentence as the “second most severe\\n\\n[punishment] known to the law,” Harmelin v. Michigan, 501 U.S. 957, 996 (1991),\\n\\nand we cannot accept Kirby’s invitation to hold that a 1440-month sentence is\\n\\nworse. We instead conclude that when the Sentencing Guidelines recommend life\\n\\nimprisonment, they mean life imprisonment. Accordingly, the district court did not\\n\\nerr procedurally when it calculated Kirby’s guidelines sentence as close to\\n\\nindefinite incarceration as the law allowed.\\n\\n B. The Sentence Is Not Substantively Unreasonable.\\n\\n Kirby also contends that his sentence is substantively unreasonable, which\\n\\nrequires him to establish that the district court “fail[ed] to afford consideration to\\n\\nrelevant factors that were due significant weight, [gave] significant weight to an\\n\\nimproper or irrelevant factor, or commit[ed] a clear error of judgment in\\n\\nconsidering the proper factors.” United States v. Dixon, 901 F.3d 1322, 1351 (11th\\n\\nCir. 2018) (internal quotation marks omitted). Substantively unreasonable\\n\\nsentences are “rare.” Id. We also “ordinarily expect a sentence within the\\n\\nguidelines range to be reasonable.” Id. (internal quotation marks omitted).\\n\\n\\n\\n 8\\n\\f Case: 18-11253 Date Filed: 09/17/2019 Page: 9 of 9\\n\\n\\n As an initial matter, Kirby’s argument is largely predicated on the erroneous\\n\\nconclusion that the district court imposed an above-guidelines sentence.\\n\\nRegardless, the sentence was not unreasonable. Before imposing the longest\\n\\nsentence that it could, the district court thoroughly discussed Kirby’s particularly\\n\\nheinous conduct and direct participation in the creation of child pornography, his\\n\\nbreach of public trust as a police officer, and his total failure to take responsibility\\n\\nfor his actions. We see no abuse of discretion.\\n\\n IV. CONCLUSION\\n\\n We AFFIRM Kirby’s sentence.\\n\\n\\n\\n\\n 9\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4438826/\", \"author_raw\": \"WILLIAM PRYOR, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WILLIAM PRYOR"},"judge2":{"kind":"string","value":"JILL PRYOR"},"judge3":{"kind":"string","value":"ROBRENO"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"WILLIAM PRYOR\": \", Circuit\", \"JILL PRYOR\": \", Circuit\", \"ROBRENO\": \", District\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4661573/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Kyle Adam Kirby\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-09-17\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 18-11253 Date Filed: 09/17/2019 Page: 1 of 9\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 18-11253\n ________________________\n\n D.C. Docket No. 3:15-cr-00175-TJC-JRK-1\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n versus\n\nKYLE ADAM KIRBY,\n\n Defendant-Appellant.\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n _______________________\n\n (September 17, 2019)\n\nBefore WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and ROBRENO,*\nDistrict Judge.\n\nWILLIAM PRYOR, Circuit Judge:\n\n\n\n\n *\n Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of\nPennsylvania, sitting by designation.\n\f Case: 18-11253 Date Filed: 09/17/2019 Page: 2 of 9\n\n\n This appeal requires us to decide whether the United States Sentencing\n\nGuidelines cap an otherwise recommended sentence of life imprisonment at 470\n\nmonths when the statute of conviction does not allow a sentence of a life term. A\n\njury convicted Kyle Adam Kirby of five counts relating to the production and\n\npossession of child pornography. At sentencing, Kirby’s total offense level was 43,\n\nwhich means that the Guidelines ordinarily recommended a sentence of a life term.\n\nBut because the statutory maximum punishment for Kirby’s crimes was less than a\n\nlife term, the district court concluded that the Guidelines recommended\n\nconsecutive terms of the maximum sentence for each count of conviction. The\n\ndistrict court then adopted this recommendation and sentenced Kirby to 1440\n\nmonths of imprisonment. Kirby argues that the correct sentence is 470 months of\n\nimprisonment because the United States Sentencing Commission equates a life\n\nsentence to that term for statistical purposes. He also contends that his sentence\n\nwas substantively unreasonable. We disagree and affirm Kirby’s sentence.\n\n I. BACKGROUND\n State and federal law enforcement officers traced 28 video files and 90\n\nimages depicting child pornography to the Internet protocol address of Kyle Adam\n\nKirby, a sergeant with the Live Oak Police Department. A later investigation by\n\nthe Federal Bureau of Investigation uncovered over 200 images of children being\n\nsexually abused on the laptop computer assigned to Kirby’s patrol vehicle. Kirby,\n\n\n\n 2\n\f Case: 18-11253 Date Filed: 09/17/2019 Page: 3 of 9\n\n\nwho was by then suspended from his job, responded by asking Sergeant Derick\n\nSlaughter to erase the files from his account on the department’s desktop computer.\n\nInstead of deleting Kirby’s files, Slaughter searched Kirby’s account and found an\n\nimage of a nude, prepubescent boy. Slaughter reported the image to the police\n\nchief, who approved a search of the computer. A forensic analysis of the computer\n\nproduced at least 80 images of child pornography or child erotica. Most of these\n\nimages were of Kirby’s thirteen-year-old stepdaughter, either captured by hidden\n\ncameras in bathrooms or taken while Kirby was assisting his stepdaughter with\n\nstretches due to a sports injury. The computer also contained a pornographic image\n\nof a friend of Kirby’s stepdaughter.\n\n A grand jury charged Kirby with three counts of sexual exploitation of\n\nchildren for the purpose of producing child pornography, 18 U.S.C. § 2251(a), (e),\n\nand two counts of possessing with intent to view material involving minors\n\nengaged in sexually explicit conduct, 18 U.S.C. § 2252(a)(4)(B), (b)(2). Following\n\ntrial, a jury found Kirby guilty on all counts.\n\n Using the 2016 edition of the United States Sentencing Guidelines, the\n\nprobation officer assigned Kirby a total offense level of 43 and a criminal-history\n\ncategory of I. The district court accepted this calculation without objection from\n\neither party. As the district court explained, the Guidelines ordinarily recommend a\n\nlife sentence for this offense level. See United States Sentencing Guidelines\n\n\n\n 3\n\f Case: 18-11253 Date Filed: 09/17/2019 Page: 4 of 9\n\n\nManual ch. 5 pt. A (Nov. 2016). But because none of the counts of conviction\n\nallowed for life imprisonment, the district court concluded that the Guidelines\n\nrecommended “taking the maximum for each count . . . and adding them together\n\nfor a sentence.” Again without objection, the district court then calculated the\n\nguidelines sentence as 1440 months. And after considering the statutory sentencing\n\nfactors, 18 U.S.C. § 3553(a), the district court sentenced Kirby to 1440 months of\n\nimprisonment.\n\n II. STANDARD OF REVIEW\n\n We review an interpretation of the Sentencing Guidelines de novo. United\n\nStates v. Whyte, 928 F.3d 1317, 1327 (11th Cir. 2019). We review the substantive\n\nreasonableness of a sentence for abuse of discretion. United States v. Duperval,\n\n777 F.3d 1324, 1331 (11th Cir. 2015). We will reverse for abuse of discretion only\n\nif “we are left with the definite and firm conviction that the district court\n\ncommitted a clear error of judgment in weighing the [section] 3553(a) factors by\n\narriving at a sentence that lies outside the range of reasonable sentences dictated by\n\nthe facts of the case.” Id. (internal quotation marks omitted).\n\n III. DISCUSSION\n\n For the first time on appeal, Kirby argues that the district court committed\n\nprocedural error by calculating the guidelines sentence as consecutive terms of the\n\nmaximum sentence for each count of conviction. As a fallback position, he\n\n\n\n 4\n\f Case: 18-11253 Date Filed: 09/17/2019 Page: 5 of 9\n\n\ncontends that his sentence was substantively unreasonable. We address each\n\nargument in turn.\n\n A. The District Court Did Not Err When It Calculated the Guidelines\n Sentence.\n Kirby argues for the first time on appeal that the district court incorrectly\n\ncalculated the guidelines sentence. His failure to object in the district court would\n\nordinarily mean that we review for plain error, United States v. Corbett, 921 F.3d\n\n1032, 1037 (11th Cir. 2019), but because no error occurred we need not decide\n\nwhether the alleged error was plain or affected Kirby’s substantial rights.\n\n As Kirby concedes, his total offense level and criminal-history category\n\nwould ordinarily call for life imprisonment. U.S.S.G. ch. 5 pt. A. But none of\n\nKirby’s offenses carried a possible life sentence. See 18 U.S.C. § 2251(e)\n\n(imposing a maximum sentence of 30 years); id. § 2252(b)(2) (imposing maximum\n\nsentences of 10 and 20 years). So the district court applied section 5G1.2(d) of the\n\nGuidelines, which explains what to do in that circumstance:\n\n If the sentence imposed on the count carrying the highest statutory\n maximum is less than the [ordinary guidelines recommendation], then\n the sentence imposed on one or more of the other counts shall run\n consecutively, but only to the extent necessary to produce a combined\n sentence equal to the [ordinary guidelines recommendation].\n\n The parties agree that section 5G1.2(d) controls our decision. They dispute\n\nwhat sentence is “equal to” life imprisonment. The district court adopted a\n\nstraightforward understanding of a life sentence—that is, indefinite in duration. So\n\n\n 5\n\f Case: 18-11253 Date Filed: 09/17/2019 Page: 6 of 9\n\n\nit concluded that the Guidelines recommended consecutive terms of the statutory\n\nmaximums for each count of conviction, the closest sentence to life that the law\n\nallowed. The maximum terms for Kirby’s five counts of conviction collectively\n\nproduced a sentence of 1440 months of imprisonment. But Kirby contends that a\n\nlife sentence converts to 470 months. He explains that the United States Sentencing\n\nCommission defines a “life sentence” for statistical purposes as 470 months, “a\n\nlength consistent with the average life expectancy of federal criminal offenders.”\n\nU.S. Sentencing Comm’n, Sourcebook of Federal Sentencing Statistics 166 (2017).\n\n The district court correctly interpreted the Guidelines. “[T]he language of\n\nthe Sentencing Guidelines, like the language of a statute, must be given its plain\n\nand ordinary meaning.” United States v. Whatley, 719 F.3d 1206, 1222 (11th Cir.\n\n2013) (internal quotation marks omitted). And the meaning of life imprisonment is\n\nclear: “Confinement of a person in prison for the remaining years of his or her\n\nnatural life.” Life Imprisonment, Black’s Law Dictionary (11th ed. 2019). By\n\ndefinition, life imprisonment lacks a fixed term. So the district court correctly\n\ncombined the statutory maximum for each count of conviction to set Kirby’s\n\nguideline sentence at 1440 months of imprisonment, the closest available sentence\n\nto indefinite incarceration. See U.S.S.G. § 5G1.1(a) (“Where the statutorily\n\nauthorized maximum sentence is less than the minimum of the applicable guideline\n\nrange, the statutorily authorized maximum sentence shall be the guideline\n\n\n\n 6\n\f Case: 18-11253 Date Filed: 09/17/2019 Page: 7 of 9\n\n\nsentence.”); see also United States v. Sarras, 575 F.3d 1191, 1208–09, 1219–20 &\n\nn.22 (11th Cir. 2009) (concluding that a sentence of 1200 months of imprisonment\n\nfell within the Guidelines when the Guidelines called for a life sentence but the\n\ncounts of conviction did not permit life).\n\n The definition of life imprisonment in the statistical sourcebook published\n\nby the Sentencing Commission does not alter this conclusion. To start, the\n\nstatistical sourcebook is not part of the Sentencing Guidelines. The Commission\n\npublishes the sourcebook based on its authority to collect and publish data on the\n\nsentencing process. See Sourcebook of Federal Sentencing Statistics, supra, at s-1\n\n(citing 28 U.S.C. § 995(a)(12)–(16)). The report also satisfies the Commission’s\n\nobligation to provide an annual report of sentencing data to the United States\n\nAttorney General. See id. (citing 28 U.S.C. § 994(w)(4)). But the sourcebook does\n\nnot amend or redefine the Guidelines in any way, which would require the\n\nCommission to approve it by an affirmative vote and submit it to Congress for\n\nreview. See 28 U.S.C. § 994(a), (p). As the First Circuit has held, “[t]hough 470\n\nmonths may be an accurate statistical representation of the actual length of many\n\nlife sentences—and may indeed be equivalent to a life sentence for many\n\nindividuals—there is no ‘cap’ within the Guidelines that limits life sentences to\n\n470 months.” United States v. Breton, 740 F.3d 1, 22 (1st Cir. 2014). And although\n\none circuit has approved the use of 470 months as a baseline to calculate a\n\n\n\n 7\n\f Case: 18-11253 Date Filed: 09/17/2019 Page: 8 of 9\n\n\nreduction in a sentence for substantial assistance to the government, United States\n\nv. Keller, 413 F.3d 706, 711 (8th Cir. 2005); see also United States v. Nelson, 491\n\nF.3d 344, 349–50 (7th Cir. 2007) (suggesting the same in dicta), no circuit has\n\ndefined life imprisonment as 470 months.\n\n The Supreme Court has described a life sentence as the “second most severe\n\n[punishment] known to the law,” Harmelin v. Michigan, 501 U.S. 957, 996 (1991),\n\nand we cannot accept Kirby’s invitation to hold that a 1440-month sentence is\n\nworse. We instead conclude that when the Sentencing Guidelines recommend life\n\nimprisonment, they mean life imprisonment. Accordingly, the district court did not\n\nerr procedurally when it calculated Kirby’s guidelines sentence as close to\n\nindefinite incarceration as the law allowed.\n\n B. The Sentence Is Not Substantively Unreasonable.\n\n Kirby also contends that his sentence is substantively unreasonable, which\n\nrequires him to establish that the district court “fail[ed] to afford consideration to\n\nrelevant factors that were due significant weight, [gave] significant weight to an\n\nimproper or irrelevant factor, or commit[ed] a clear error of judgment in\n\nconsidering the proper factors.” United States v. Dixon, 901 F.3d 1322, 1351 (11th\n\nCir. 2018) (internal quotation marks omitted). Substantively unreasonable\n\nsentences are “rare.” Id. We also “ordinarily expect a sentence within the\n\nguidelines range to be reasonable.” Id. (internal quotation marks omitted).\n\n\n\n 8\n\f Case: 18-11253 Date Filed: 09/17/2019 Page: 9 of 9\n\n\n As an initial matter, Kirby’s argument is largely predicated on the erroneous\n\nconclusion that the district court imposed an above-guidelines sentence.\n\nRegardless, the sentence was not unreasonable. Before imposing the longest\n\nsentence that it could, the district court thoroughly discussed Kirby’s particularly\n\nheinous conduct and direct participation in the creation of child pornography, his\n\nbreach of public trust as a police officer, and his total failure to take responsibility\n\nfor his actions. We see no abuse of discretion.\n\n IV. CONCLUSION\n\n We AFFIRM Kirby’s sentence.\n\n\n\n\n 9\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Kyle Adam Kirby\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-09-17\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 18-11253 Date Filed: 09/17/2019 Page: 1 of 9\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 18-11253\\n ________________________\\n\\n D.C. Docket No. 3:15-cr-00175-TJC-JRK-1\\n\\n\\n\\nUNITED STATES OF AMERICA,\\n\\n Plaintiff-Appellee,\\n versus\\n\\nKYLE ADAM KIRBY,\\n\\n Defendant-Appellant.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n _______________________\\n\\n (September 17, 2019)\\n\\nBefore WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and ROBRENO,*\\nDistrict Judge.\\n\\nWILLIAM PRYOR, Circuit Judge:\\n\\n\\n\\n\\n *\\n Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of\\nPennsylvania, sitting by designation.\\n\\f Case: 18-11253 Date Filed: 09/17/2019 Page: 2 of 9\\n\\n\\n This appeal requires us to decide whether the United States Sentencing\\n\\nGuidelines cap an otherwise recommended sentence of life imprisonment at 470\\n\\nmonths when the statute of conviction does not allow a sentence of a life term. A\\n\\njury convicted Kyle Adam Kirby of five counts relating to the production and\\n\\npossession of child pornography. At sentencing, Kirby’s total offense level was 43,\\n\\nwhich means that the Guidelines ordinarily recommended a sentence of a life term.\\n\\nBut because the statutory maximum punishment for Kirby’s crimes was less than a\\n\\nlife term, the district court concluded that the Guidelines recommended\\n\\nconsecutive terms of the maximum sentence for each count of conviction. The\\n\\ndistrict court then adopted this recommendation and sentenced Kirby to 1440\\n\\nmonths of imprisonment. Kirby argues that the correct sentence is 470 months of\\n\\nimprisonment because the United States Sentencing Commission equates a life\\n\\nsentence to that term for statistical purposes. He also contends that his sentence\\n\\nwas substantively unreasonable. We disagree and affirm Kirby’s sentence.\\n\\n I. BACKGROUND\\n State and federal law enforcement officers traced 28 video files and 90\\n\\nimages depicting child pornography to the Internet protocol address of Kyle Adam\\n\\nKirby, a sergeant with the Live Oak Police Department. A later investigation by\\n\\nthe Federal Bureau of Investigation uncovered over 200 images of children being\\n\\nsexually abused on the laptop computer assigned to Kirby’s patrol vehicle. Kirby,\\n\\n\\n\\n 2\\n\\f Case: 18-11253 Date Filed: 09/17/2019 Page: 3 of 9\\n\\n\\nwho was by then suspended from his job, responded by asking Sergeant Derick\\n\\nSlaughter to erase the files from his account on the department’s desktop computer.\\n\\nInstead of deleting Kirby’s files, Slaughter searched Kirby’s account and found an\\n\\nimage of a nude, prepubescent boy. Slaughter reported the image to the police\\n\\nchief, who approved a search of the computer. A forensic analysis of the computer\\n\\nproduced at least 80 images of child pornography or child erotica. Most of these\\n\\nimages were of Kirby’s thirteen-year-old stepdaughter, either captured by hidden\\n\\ncameras in bathrooms or taken while Kirby was assisting his stepdaughter with\\n\\nstretches due to a sports injury. The computer also contained a pornographic image\\n\\nof a friend of Kirby’s stepdaughter.\\n\\n A grand jury charged Kirby with three counts of sexual exploitation of\\n\\nchildren for the purpose of producing child pornography, 18 U.S.C. § 2251(a), (e),\\n\\nand two counts of possessing with intent to view material involving minors\\n\\nengaged in sexually explicit conduct, 18 U.S.C. § 2252(a)(4)(B), (b)(2). Following\\n\\ntrial, a jury found Kirby guilty on all counts.\\n\\n Using the 2016 edition of the United States Sentencing Guidelines, the\\n\\nprobation officer assigned Kirby a total offense level of 43 and a criminal-history\\n\\ncategory of I. The district court accepted this calculation without objection from\\n\\neither party. As the district court explained, the Guidelines ordinarily recommend a\\n\\nlife sentence for this offense level. See United States Sentencing Guidelines\\n\\n\\n\\n 3\\n\\f Case: 18-11253 Date Filed: 09/17/2019 Page: 4 of 9\\n\\n\\nManual ch. 5 pt. A (Nov. 2016). But because none of the counts of conviction\\n\\nallowed for life imprisonment, the district court concluded that the Guidelines\\n\\nrecommended “taking the maximum for each count . . . and adding them together\\n\\nfor a sentence.” Again without objection, the district court then calculated the\\n\\nguidelines sentence as 1440 months. And after considering the statutory sentencing\\n\\nfactors, 18 U.S.C. § 3553(a), the district court sentenced Kirby to 1440 months of\\n\\nimprisonment.\\n\\n II. STANDARD OF REVIEW\\n\\n We review an interpretation of the Sentencing Guidelines de novo. United\\n\\nStates v. Whyte, 928 F.3d 1317, 1327 (11th Cir. 2019). We review the substantive\\n\\nreasonableness of a sentence for abuse of discretion. United States v. Duperval,\\n\\n777 F.3d 1324, 1331 (11th Cir. 2015). We will reverse for abuse of discretion only\\n\\nif “we are left with the definite and firm conviction that the district court\\n\\ncommitted a clear error of judgment in weighing the [section] 3553(a) factors by\\n\\narriving at a sentence that lies outside the range of reasonable sentences dictated by\\n\\nthe facts of the case.” Id. (internal quotation marks omitted).\\n\\n III. DISCUSSION\\n\\n For the first time on appeal, Kirby argues that the district court committed\\n\\nprocedural error by calculating the guidelines sentence as consecutive terms of the\\n\\nmaximum sentence for each count of conviction. As a fallback position, he\\n\\n\\n\\n 4\\n\\f Case: 18-11253 Date Filed: 09/17/2019 Page: 5 of 9\\n\\n\\ncontends that his sentence was substantively unreasonable. We address each\\n\\nargument in turn.\\n\\n A. The District Court Did Not Err When It Calculated the Guidelines\\n Sentence.\\n Kirby argues for the first time on appeal that the district court incorrectly\\n\\ncalculated the guidelines sentence. His failure to object in the district court would\\n\\nordinarily mean that we review for plain error, United States v. Corbett, 921 F.3d\\n\\n1032, 1037 (11th Cir. 2019), but because no error occurred we need not decide\\n\\nwhether the alleged error was plain or affected Kirby’s substantial rights.\\n\\n As Kirby concedes, his total offense level and criminal-history category\\n\\nwould ordinarily call for life imprisonment. U.S.S.G. ch. 5 pt. A. But none of\\n\\nKirby’s offenses carried a possible life sentence. See 18 U.S.C. § 2251(e)\\n\\n(imposing a maximum sentence of 30 years); id. § 2252(b)(2) (imposing maximum\\n\\nsentences of 10 and 20 years). So the district court applied section 5G1.2(d) of the\\n\\nGuidelines, which explains what to do in that circumstance:\\n\\n If the sentence imposed on the count carrying the highest statutory\\n maximum is less than the [ordinary guidelines recommendation], then\\n the sentence imposed on one or more of the other counts shall run\\n consecutively, but only to the extent necessary to produce a combined\\n sentence equal to the [ordinary guidelines recommendation].\\n\\n The parties agree that section 5G1.2(d) controls our decision. They dispute\\n\\nwhat sentence is “equal to” life imprisonment. The district court adopted a\\n\\nstraightforward understanding of a life sentence—that is, indefinite in duration. So\\n\\n\\n 5\\n\\f Case: 18-11253 Date Filed: 09/17/2019 Page: 6 of 9\\n\\n\\nit concluded that the Guidelines recommended consecutive terms of the statutory\\n\\nmaximums for each count of conviction, the closest sentence to life that the law\\n\\nallowed. The maximum terms for Kirby’s five counts of conviction collectively\\n\\nproduced a sentence of 1440 months of imprisonment. But Kirby contends that a\\n\\nlife sentence converts to 470 months. He explains that the United States Sentencing\\n\\nCommission defines a “life sentence” for statistical purposes as 470 months, “a\\n\\nlength consistent with the average life expectancy of federal criminal offenders.”\\n\\nU.S. Sentencing Comm’n, Sourcebook of Federal Sentencing Statistics 166 (2017).\\n\\n The district court correctly interpreted the Guidelines. “[T]he language of\\n\\nthe Sentencing Guidelines, like the language of a statute, must be given its plain\\n\\nand ordinary meaning.” United States v. Whatley, 719 F.3d 1206, 1222 (11th Cir.\\n\\n2013) (internal quotation marks omitted). And the meaning of life imprisonment is\\n\\nclear: “Confinement of a person in prison for the remaining years of his or her\\n\\nnatural life.” Life Imprisonment, Black’s Law Dictionary (11th ed. 2019). By\\n\\ndefinition, life imprisonment lacks a fixed term. So the district court correctly\\n\\ncombined the statutory maximum for each count of conviction to set Kirby’s\\n\\nguideline sentence at 1440 months of imprisonment, the closest available sentence\\n\\nto indefinite incarceration. See U.S.S.G. § 5G1.1(a) (“Where the statutorily\\n\\nauthorized maximum sentence is less than the minimum of the applicable guideline\\n\\nrange, the statutorily authorized maximum sentence shall be the guideline\\n\\n\\n\\n 6\\n\\f Case: 18-11253 Date Filed: 09/17/2019 Page: 7 of 9\\n\\n\\nsentence.”); see also United States v. Sarras, 575 F.3d 1191, 1208–09, 1219–20 &\\n\\nn.22 (11th Cir. 2009) (concluding that a sentence of 1200 months of imprisonment\\n\\nfell within the Guidelines when the Guidelines called for a life sentence but the\\n\\ncounts of conviction did not permit life).\\n\\n The definition of life imprisonment in the statistical sourcebook published\\n\\nby the Sentencing Commission does not alter this conclusion. To start, the\\n\\nstatistical sourcebook is not part of the Sentencing Guidelines. The Commission\\n\\npublishes the sourcebook based on its authority to collect and publish data on the\\n\\nsentencing process. See Sourcebook of Federal Sentencing Statistics, supra, at s-1\\n\\n(citing 28 U.S.C. § 995(a)(12)–(16)). The report also satisfies the Commission’s\\n\\nobligation to provide an annual report of sentencing data to the United States\\n\\nAttorney General. See id. (citing 28 U.S.C. § 994(w)(4)). But the sourcebook does\\n\\nnot amend or redefine the Guidelines in any way, which would require the\\n\\nCommission to approve it by an affirmative vote and submit it to Congress for\\n\\nreview. See 28 U.S.C. § 994(a), (p). As the First Circuit has held, “[t]hough 470\\n\\nmonths may be an accurate statistical representation of the actual length of many\\n\\nlife sentences—and may indeed be equivalent to a life sentence for many\\n\\nindividuals—there is no ‘cap’ within the Guidelines that limits life sentences to\\n\\n470 months.” United States v. Breton, 740 F.3d 1, 22 (1st Cir. 2014). And although\\n\\none circuit has approved the use of 470 months as a baseline to calculate a\\n\\n\\n\\n 7\\n\\f Case: 18-11253 Date Filed: 09/17/2019 Page: 8 of 9\\n\\n\\nreduction in a sentence for substantial assistance to the government, United States\\n\\nv. Keller, 413 F.3d 706, 711 (8th Cir. 2005); see also United States v. Nelson, 491\\n\\nF.3d 344, 349–50 (7th Cir. 2007) (suggesting the same in dicta), no circuit has\\n\\ndefined life imprisonment as 470 months.\\n\\n The Supreme Court has described a life sentence as the “second most severe\\n\\n[punishment] known to the law,” Harmelin v. Michigan, 501 U.S. 957, 996 (1991),\\n\\nand we cannot accept Kirby’s invitation to hold that a 1440-month sentence is\\n\\nworse. We instead conclude that when the Sentencing Guidelines recommend life\\n\\nimprisonment, they mean life imprisonment. Accordingly, the district court did not\\n\\nerr procedurally when it calculated Kirby’s guidelines sentence as close to\\n\\nindefinite incarceration as the law allowed.\\n\\n B. The Sentence Is Not Substantively Unreasonable.\\n\\n Kirby also contends that his sentence is substantively unreasonable, which\\n\\nrequires him to establish that the district court “fail[ed] to afford consideration to\\n\\nrelevant factors that were due significant weight, [gave] significant weight to an\\n\\nimproper or irrelevant factor, or commit[ed] a clear error of judgment in\\n\\nconsidering the proper factors.” United States v. Dixon, 901 F.3d 1322, 1351 (11th\\n\\nCir. 2018) (internal quotation marks omitted). Substantively unreasonable\\n\\nsentences are “rare.” Id. We also “ordinarily expect a sentence within the\\n\\nguidelines range to be reasonable.” Id. (internal quotation marks omitted).\\n\\n\\n\\n 8\\n\\f Case: 18-11253 Date Filed: 09/17/2019 Page: 9 of 9\\n\\n\\n As an initial matter, Kirby’s argument is largely predicated on the erroneous\\n\\nconclusion that the district court imposed an above-guidelines sentence.\\n\\nRegardless, the sentence was not unreasonable. Before imposing the longest\\n\\nsentence that it could, the district court thoroughly discussed Kirby’s particularly\\n\\nheinous conduct and direct participation in the creation of child pornography, his\\n\\nbreach of public trust as a police officer, and his total failure to take responsibility\\n\\nfor his actions. We see no abuse of discretion.\\n\\n IV. CONCLUSION\\n\\n We AFFIRM Kirby’s sentence.\\n\\n\\n\\n\\n 9\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4496,"cells":{"id":{"kind":"number","value":4661593,"string":"4,661,593"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"United States v. Secretary Florida Agency for Health Care Administration"},"decision_date":{"kind":"string","value":"2019-09-17"},"docket_number":{"kind":"string","value":"17-13595"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before JILL PRYOR, BRANCH, and BOGGS,∗ Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"type\": \"010combined\", \"text\": \"Case: 17-13595 Date Filed: 09/17/2019 Page: 1 of 66\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-13595\\n ________________________\\n\\n D.C. Docket No. 0:12-cv-60460-WJZ\\n\\nUNITED STATES OF AMERICA,\\n Plaintiff-Appellants,\\n versus\\n\\nSTATE OF FLORIDA,\\n Defendant-Appellees.\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (September 17, 2019)\\n\\nBefore JILL PRYOR, BRANCH, and BOGGS,∗ Circuit Judges.\\n\\n Table of Contents\\nANALYSIS ................................................................................................................5\\nI. An Overview of Title II of the ADA ......................................................................5\\nII. The Remedial Structure of Title VI of the Civil Rights Act ...............................12\\n A. Title VI Enforcement Regulations Contemplate Department of Justice\\n Enforcement Suits ................................................................................................14\\n\\n\\n\\n ∗\\n Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by\\ndesignation.\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 2 of 66\\n\\n\\n B. Enforcing Title VI: Any Other Means Authorized By Law ...........................17\\nIII. Section 505 of the Rehabilitation Act ................................................................21\\n A. Rehabilitation Act Enforcement Regulations Tracked Title VI Regulations .22\\n B. Department of Justice Enforcement of the Rehabilitation Act .......................27\\nIV. Enforcement of Title II of the ADA ..................................................................32\\n A. Title II Enforcement Regulations Follow Regulations Promulgated Under the\\n Rehabilitation Act and Title VI............................................................................33\\n B. Title II of the ADA Permits Department of Justice Enforcement ..................39\\n C. The Legislative History of Title II Supports the Attorney General’s Authority\\n to File Suit ............................................................................................................46\\n D. The Department of Justice Has Filed Suit to Enforce Title II ........................51\\n E. Federalism Principles Do Not Alter Our Conclusion......................................54\\nCONCLUSION ........................................................................................................58\\n\\n\\n\\nBOGGS, Circuit Judge:\\n\\n In September 2012, after completing a six-month investigation, the\\n\\nDepartment of Justice issued a Letter of Findings notifying Florida that it was failing\\n\\nto meet its obligations under Title II of the Americans With Disabilities Act of 1990\\n\\n(“ADA”) and its implementing regulations, by “unnecessarily institutionalizing\\n\\nhundreds of children with disabilities in nursing facilities.” The Department of\\n\\nJustice also asserted that Florida’s Medicaid policies and practices placed other\\n\\n\\n\\n\\n 2\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 3 of 66\\n\\n\\nchildren who have “medically complex” 1 conditions, or who are “medically\\n\\nfragile,” 2 at risk of unnecessary institutionalization.\\n\\n The Department of Justice negotiated with Florida to attempt to resolve the\\n\\nviolations identified in the Letter of Findings. After concluding that it could not\\n\\nobtain voluntary compliance, the Department of Justice filed suit in the Southern\\n\\nDistrict of Florida in July 2013, seeking declaratory and injunctive relief under Title\\n\\nII of the ADA and 28 C.F.R. § 35.130(d).\\n\\n In December 2013, pursuant to Fed. R. Civ. P. 42(a), the district court\\n\\nconsolidated the Department of Justice’s suit with a previously-filed class-action\\n\\ncomplaint from a group of children who similarly alleged that Florida’s policies\\n\\n\\n\\n\\n 1\\n The Letter of Findings relied on Florida’s then-operative definition of “medically\\ncomplex.” The term describes “a person [who] has chronic debilitating diseases or conditions of\\none (1) or more physiological or organ systems that generally make the person dependent upon\\ntwenty-four (24) hour-per-day medical, nursing, or health supervision or intervention.” Fla.\\nAdmin. Code R. 59G-1.010(164) (2012). Florida has since amended its Administrative Code, and\\nthis definition no longer appears. See Fla. Admin. Code R. 59G-1.010.\\n 2\\n At the time the Letter of Findings was issued, Florida defined “medically fragile” as a\\nperson who is:\\n\\n medically complex and whose medical condition is of such a nature\\n that he is technologically dependent, requiring medical apparatus or\\n procedures to sustain life, e.g., requires total parenteral nutrition\\n (TPN), is ventilator dependent, or is dependent on a heightened level\\n of medical supervision to sustain life, and without such services is\\n likely to expire without warning.\\n\\nFla. Admin. Code R. 59G-1.010(165) (2012). This definition no longer appears in Florida’s\\nAdministrative Code. See Fla. Admin. Code R. 59G-1.010.\\n 3\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 4 of 66\\n\\n\\ncaused, or put them at risk of, unnecessary institutionalization and unlawful\\n\\nsegregation on the basis of disability. See A.R. v. Sec’y Fla. Agency for Health Care\\n\\nAdmin., 769 F. App’x 718 (11th Cir. 2019).\\n\\n Shortly before the consolidation, Florida filed a Motion for Judgment on the\\n\\nPleadings, asserting that Title II of the ADA did not authorize the Attorney General\\n\\nto file suit. The district court denied Florida’s motion, concluding that the\\n\\nDepartment of Justice had reasonably interpreted Title II and had the authority to\\n\\nfile suit to enforce Title II. See A.R. v. Dudek, 31 F. Supp. 3d 1363, 1367 (S.D. Fla.\\n\\n2014).\\n\\n In 2016, the district court sua sponte revisited the issue3 and dismissed the\\n\\nDepartment of Justice’s case because it concluded that the Attorney General lacked\\n\\nstanding to sue under Title II of the ADA. See C.V. v. Dudek, 209 F. Supp. 3d 1279,\\n\\n1282 (S.D. Fla. 2016). After further litigation, the district court dismissed the\\n\\nchildren’s case. This appeal followed.\\n\\n\\n\\n\\n 3\\n There do not appear to be any significant factual or legal changes between the 2014\\ndecision and the 2016 decision. The consolidated cases were reassigned in 2014, shortly after the\\ndistrict court decided Florida’s Motion for Judgment on the Pleadings. In 2016, the district court\\njustified its departure from the 2014 decision because it concluded that the 2014 decision\\nerroneously applied Chevron U.S.A. Inc. v. Nat. Res. Defense Council, Inc., 467 U.S. 837 (1984),\\nand improperly deferred to the Department of Justice’s interpretation of the statute. See C.V. v.\\nDudek, 209 F. Supp. 3d 1279, 1291 n.11 (S.D. Fla. 2016).\\n 4\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 5 of 66\\n\\n\\n ANALYSIS\\n\\n This case requires us to determine whether the Attorney General has a cause\\n\\nof action to enforce Title II of the ADA. This is a purely legal question, requiring\\n\\nstatutory interpretation. Therefore, the proper standard of review is de novo.\\n\\nStansell v. Revolutionary Armed Forces of Colombia, 704 F.3d 910, 914 (11th Cir.\\n\\n2014).\\n\\n I. An Overview of Title II of the ADA\\n\\n The ADA was intended to “provide a clear and comprehensive national\\n\\nmandate for the elimination of discrimination against individuals with disabilities,”\\n\\nand establish strong, enforceable standards to achieve that goal. 42 U.S.C.\\n\\n§ 12101(b)(1)–(2). Congress envisioned that, through the ADA, the Federal\\n\\nGovernment would take “a central role in enforcing the standards established in this\\n\\nchapter on behalf of individuals with disabilities,” and invoked “the sweep of\\n\\ncongressional authority, including the power to enforce the [F]ourteenth\\n\\n[A]mendment and to regulate commerce” to “address the major areas of\\n\\ndiscrimination faced day-to-day by people with disabilities.” Id. (b)(3)–(4). See\\n\\nalso United States v. Georgia, 546 U.S. 151, 154 (2006).\\n\\n Part A of Title II, 42 U.S.C. §§ 12131–12134, addresses public services\\n\\nprovided by public entities. A “public entity” means “any State or local\\n\\ngovernment,” or “any department, agency, special purpose district, or other\\n\\n\\n 5\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 6 of 66\\n\\n\\ninstrumentality of a State or States or local government . . . .” 42 U.S.C.\\n\\n§ 12131(1)(A)–(B). Title II prohibits discrimination based on disability, specifically,\\n\\n“[s]ubject to the provisions of this subchapter, no qualified individual with a\\n\\ndisability shall, by reason of such disability, be excluded from participation in or be\\n\\ndenied the benefits of the services, programs, or activities of a public entity, or be\\n\\nsubjected to discrimination by any such entity.” 42 U.S.C. § 12132. The term\\n\\n“qualified individual with a disability” means:\\n\\n an individual with a disability who, with or without\\n reasonable modifications to rules, policies, or practices,\\n the removal of architectural, communication, or\\n transportation barriers, or the provision of auxiliary aids\\n and services, meets the essential eligibility requirements\\n for the receipt of services or the participation in programs\\n or activities provided by a public entity.\\n\\n42 U.S.C. § 12131(2).\\n\\n Title II’s enforcement provision states that “[t]he remedies, procedures, and\\n\\nrights set forth in section 794a of Title 29 shall be the remedies, procedures, and\\n\\nrights this subchapter provides to any person alleging discrimination on the basis of\\n\\ndisability in violation of section 12132 of this title.” 42 U.S.C. § 12133. Congress\\n\\ndirected the Attorney General to “promulgate regulations in an accessible format\\n\\nthat implement [Title II].” 42 U.S.C. § 12134(a). Such regulations, with the\\n\\nexception of specifically-identified terms,\\n\\n shall be consistent with this chapter and with the\\n coordination regulations under part 41 of title 28, Code of\\n 6\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 7 of 66\\n\\n\\n Federal Regulations (as promulgated by the Department of\\n Health, Education, and Welfare on January 13, 1978),\\n applicable to recipients of Federal financial assistance\\n under section 794 of Title 29.\\n\\nId. (b).\\n\\n It is undisputed that Title II permits a private cause of action for injunctive\\n\\nrelief or money damages. Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743, 750 (2017).\\n\\nWe must determine whether Title II’s enforcement scheme, 42 U.S.C. § 12133,\\n\\npermits the Attorney General to bring an enforcement action. 4 The starting point is\\n\\nthe language of the statute. United States Dep’t of Transp. v. Paralyzed Veterans of\\n\\nAm., 477 U.S. 597, 604 (1986). If the words of the statute are unambiguous, then\\n\\nwe may conclude the inquiry there. Connecticut Nat’l Bank v. Germain, 503 U.S.\\n\\n249, 254 (1992).\\n\\n Through a series of cross-references, the enforcement mechanism for Title II\\n\\nof the ADA is ultimately Title VI of the Civil Rights Act of 1964. See 42 U.S.C.\\n\\n§ 12133; 29 U.S.C. § 794a; 42 U.S.C. § 2000d-1. Section 12133 of Title II states\\n\\n\\n\\n 4\\n Florida maintains that Supreme Court decisions examining Title II’s enforcement\\nprovisions that consistently mention private enforcement without considering public enforcement\\nsupport a conclusion that Title II was never meant to permit public enforcement. But in each of\\nthose cases, the Supreme Court was confronted with questions stemming from private litigation\\n(the United States intervened to defend abrogation of state sovereign immunity in two cases). See\\nFry v. Napoleon Cmty. Schs., 137 S. Ct. 743, 751–52 (2017); United States v. Georgia, 546 U.S.\\n151, 154–55 (2006); Tennessee v. Lane, 541 U.S. 509, 513 (2004); Barnes v. Gorman, 536 U.S.\\n181, 183 (2002); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 588 (1999). The Court was not\\nrequired to consider whether the Attorney General could enforce Title II in those cases. We do\\nnot consider the Supreme Court’s silence on an issue that was not presented dispositive.\\n 7\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 8 of 66\\n\\n\\nthat the “remedies, procedures, and rights” available to a person alleging\\n\\ndiscrimination are those available in § 505 of the Rehabilitation Act of 1973,\\n\\n29 U.S.C. § 794a. Section 505 contains a provision for enforcing § 504 of the\\n\\nRehabilitation Act, which prohibits discrimination on the basis of disability by\\n\\nprograms and activities receiving federal financial assistance. See 29 U.S.C.\\n\\n§§ 794(a); 794a. In relevant part, § 505 states that:\\n\\n The remedies, procedures, and rights set forth in title VI\\n of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.)\\n (and in subsection (e)(3) of section 706 of such Act (42\\n U.S.C. 2000e-5), applied to claims of discrimination in\\n compensation) shall be available to any person aggrieved\\n by any act or failure to act by any recipient of Federal\\n assistance or Federal provider of such assistance under\\n section 794 of this title.\\n\\n29 U.S.C. § 794a(a)(2).\\n\\n Like § 504 of the Rehabilitation Act, § 601 of Title VI of the Civil Act of 1964\\n\\nprohibits discrimination, exclusion, or denial of benefits—in that statutory scheme,\\n\\non the basis of race, color, or national origin—by “any program or activity receiving\\n\\nfederal financial assistance.” 42 U.S.C. § 2000d.\\n\\n Section 602 of Title VI requires the various federal departments and agencies\\n\\nthat provide federal financial assistance to “effectuate” § 601 by “issuing rules,\\n\\nregulations, or orders of general applicability . . . .” 42 U.S.C. § 2000d-1. Agencies\\n\\nmay “effect” “[c]ompliance with any requirement adopted pursuant to this\\n\\nsection . . . (1) by the termination of or refusal to grant or to continue assistance\\n 8\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 9 of 66\\n\\n\\nunder such program or activity to any recipient . . . or (2) by any other means\\n\\nauthorized by law . . . .” Ibid. Before any action may be taken, the department or\\n\\nagency must issue appropriate notice and determine that it cannot obtain voluntary\\n\\ncompliance. Ibid.\\n\\n Florida insists that we need not consider the “remedies, procedures, and\\n\\nrights” available in § 505 of the Rehabilitation Act, or Title VI of the Civil Rights\\n\\nAct. It reasons that, because the Attorney General is not a “person alleging\\n\\ndiscrimination,” he is “not within the class to whom Title II provides enforcement\\n\\nauthority,” and therefore is not authorized to bring suit to enforce Title II. To support\\n\\nthis argument, Florida compares Titles I and III of the ADA, which expressly\\n\\nmention the Attorney General, with Title II, which does not.5\\n\\n The United States contends that this interpretation (followed by the district\\n\\ncourt) “misreads the plain text of Title II.” It asserts that “Title II does not authorize\\n\\nthe Attorney General to file enforcement suits by equating the Attorney General with\\n\\na ‘person alleging discrimination.’” Rather, it contends that the phrase “remedies,\\n\\nprocedures, and rights” in § 12133 is the operative phrase for statutory analysis. By\\n\\n\\n\\n\\n 5\", \"author\": \"BOGGS, Circuit Judge:\"}, {\"type\": \"dissent\", \"author\": \"The\", \"text\": \"The dissenting opinion focuses on the presumption against treating the government as a\\n“person,” citing Return Mail, Inc. v. U.S. Postal Serv., 587 U.S. ____ (2019), No. 17-1594, 2019\\nWL 2412904, at *5 (June 10, 2019). The Supreme Court’s holding in Return Mail should not\\nchange our analysis: in Return Mail, the underlying patent-review statute provided specific\\nremedies for a specified offended party, thus differing significantly from the complex “remedies,\\nprocedures, and rights” structure of the ADA explained in detail in Part IV of our opinion.\\n 9\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 10 of 66\\n\\n\\ncross-referencing to other statutes, Congress made a “package” of remedies, rights,\\n\\nand procedures available that may include enforcement by the Attorney General.\\n\\n In enacting the ADA, Congress legislated in light of existing remedial statutes.\\n\\nSee Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 590 & n.4 (1999); Shotz v. City\\n\\nof Plantation, Fla., 344 F.3d 1161, 1176–77 (11th Cir. 2003). This decision carries\\n\\nsignificant weight. When Congress adopts a new law that incorporates sections of a\\n\\nprior law, “Congress normally can be presumed to have had knowledge of the\\n\\ninterpretation given to the incorporated law, at least insofar as it affects the new\\n\\nstatute.” Lorillard v. Pons, 434 U.S. 575, 581 (1978). Because in Title II Congress\\n\\nexpressly incorporated § 505 of the Rehabilitation Act, which in turn incorporated\\n\\nTitle VI of the Civil Rights Act, as the available “remedies, procedures, and rights,”\\n\\nit is “especially justified” to conclude that Congress was aware of prior\\n\\ninterpretations, as well as the operation of, both Acts. See Cannon v. Univ. of Chi.,\\n\\n441 U.S. 677, 696–98 (1979) (applying a similar presumption while using Title VI\\n\\nto interpret Title IX). Focusing solely on the word “person” and the difference in\\n\\nthe language of enforcement provisions within the ADA ignores this presumption.\\n\\n Title II, the Rehabilitation Act, and Title VI are structured in a similar manner.\\n\\nEach has a statutory provision forbidding discrimination. Compare 42 U.S.C.\\n\\n§ 2000d, with 29 U.S.C. § 794(a), and 42 U.S.C. § 12132. Indeed, § 202 of Title II\\n\\n(42 U.S.C. § 12132) and § 504 of the Rehabilitation Act overlap substantially in their\\n\\n\\n 10\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 11 of 66\\n\\n\\nprohibitions on discrimination on the basis of disability. See Barnes v. Gorman, 536\\n\\nU.S. 181, 184–85 (2002). Title II and the Rehabilitation Act share the same\\n\\nenforcement provision, which incorporates the entirety of Title VI. See 42 U.S.C.\\n\\n§ 12133; 29 U.S.C. § 794a(a)(2).\\n\\n It is true that, at first glance, Title II’s enforcement provision is not as specific\\n\\nas those in Titles I and III. But that difference should not dictate a conclusion that,\\n\\nabsent greater specificity, we should simply assume that a single word in § 12133\\n\\nends all inquiry. Because Congress chose to cross-reference other statutory\\n\\nprovisions to identify how Title II may be enforced, we must consider those statutory\\n\\nprovisions. Courts construing Title II and the Rehabilitation Act have taken the same\\n\\napproach. See Barnes, 536 U.S. at 185 (Title II); Olmstead, 527 U.S. at 590 n.4\\n\\n(Title II); Alexander v. Choate, 469 U.S. 287, 293 n.7 (1985) (Rehabilitation Act);\\n\\nCommunity Television of S. Cal. v. Gottfried, 459 U.S. 498 (1983) (Rehabilitation\\n\\nAct); Liese v. Indian River Cty. Hosp. Dist., 701 F.3d 334, 348 (11th Cir. 2012)\\n\\n(Rehabilitation Act); Shotz, 344 F.3d at 1169–70 (Title II); United States v. Baylor\\n\\nUniv. Med. Ctr., 736 F.2d 1039, 1043–45 (5th Cir. 1984), cert. denied, 469 U.S.\\n\\n1189 (1985) (Rehabilitation Act).\\n\\n We begin in Part II by discussing the remedial provisions of Title VI of the\\n\\nCivil Rights Act, as it is the earliest-enacted statute and ultimate fount of the cascade\\n\\nof cross-references. We also examine the regulations promulgated with Title VI and\\n\\n\\n 11\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 12 of 66\\n\\n\\nlitigation that considered whether the United States could file suit to enforce Title\\n\\nVI. Next, in Part III, we analyze § 505 of the Rehabilitation Act, its accompanying\\n\\nregulations, and cases in which the United States brought suit to enforce the\\n\\nRehabilitation Act. In Part IV, we return to Title II of the ADA and examine the\\n\\nregulations the Attorney General promulgated pursuant to Congress’s directive in\\n\\n42 U.S.C. § 12134, and the district court’s conclusions about the scope of Title II\\n\\nenforcement. We analyze Title II’s legislative history, and other cases in which\\n\\nfederal courts have concluded that the Attorney General may file suit to enforce Title\\n\\nII.\\n\\n II. The Remedial Structure of Title VI of the Civil Rights Act\\n\\n Title VI contains two enforcement mechanisms. See Alexander v. Sandoval,\\n\\n532 U.S. 275, 280–81, 288–89 (2001); Arthur R. Block, Enforcement of Title VI\\n\\nCompliance Agreements by Third Party Beneficiaries, 18 Harv. C.R.-C.L. L. Rev.\\n\\n1, 9–10 (1983). First, § 601 contains an implied private cause of action. See\\n\\nSandoval, 532 U.S. at 279–80. The second enforcement mechanism is in § 602,\\n\\nwhich, as discussed above, directs federal agencies to “effectuate” § 601’s\\n\\nprohibition on discrimination by programs that receive federal funding through\\n\\nregulation, fund termination, and “any other means authorized by law.”6 See id. at\\n\\n\\n\\n 6\\n The regulatory powers attached to § 602 are substantial by contrast with other grants of\\nregulatory power elsewhere in the Civil Rights Act. In Title VII, for example, Congress specified\\n 12\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 13 of 66\\n\\n\\n289. Regulations promulgated pursuant to § 602 do not create a private right of\\n\\naction. 7 Id. at 289. Agencies enforce § 601’s prohibition on discrimination “either\\n\\nby terminating funding to the ‘particular program, or part therof,’ that has violated\\n\\nthe regulation or ‘by any other means authorized by law[.]” Ibid. (quoting 42 U.S.C.\\n\\n§ 2000d-1). This system, developed in the 1960s, was well-established at the time\\n\\nthe ADA and the Rehabilitation Act were enacted. See Block, supra, 9–10.\\n\\n\\n\\n\\nthat the EEOC could create “procedural” regulations to carry out the Title, rather than Congress’s\\nmore substantive grant of authority in Title VI to implement § 601. See Olatunde C.A. Johnson,\\nLawyering That Has No Name: Title VI and the Meaning of Private Enforcement, 66 Stan. L. Rev.\\n1293, 1298 (2014) (citing 42 U.S.C. § 2000e-12).\\n 7\\n In Alexander v. Sandoval, 532 U.S. 275, 279 (2001), the Supreme Court considered\\nwhether a private cause of action existed to enforce Department of Justice regulations promulgated\\nunder § 602. Sandoval had filed suit, alleging that Alabama’s policy of administering driver’s\\nlicense examinations only in English violated a Department of Justice regulation that forbade\\nrecipients of funding from using methods of administration that had the effect of discriminating\\non the basis of race, color, or national origin. Id. at 278–79. Florida points to Sandoval for the\\nproposition that expressly providing one method of enforcing a substantive rule suggests that\\nCongress intended to preclude others. The Supreme Court made this statement in Sandoval as it\\nconcluded that private individuals may not sue to enforce agency regulations promulgated under\\n§ 602 because that statute did not contemplate a private right of action—rather, it directed\\nauthority to agencies. Id. at 289. Sandoval instructs us that we must look to the statutory language\\nof particular provisions to assess the method of enforcement Congress has provided. Further, as\\nthe Supreme Court explained in Cannon v. Univ. of Chi., 441 U.S. 677, 711 (1979), when it\\nconcluded that Title IX implied a private right of action, the fact that other provisions of a\\n“complex statutory scheme create express remedies” is not a sufficient reason to conclude that\\nseparate sections do not contain other remedies. The Court “has generally avoided this type of\\n‘excursion into extrapolation of legislative intent,’ unless there is other, more convincing evidence\\nthat Congress meant to exclude the remedy.” Ibid. (quoting Cort v. Ash, 422 U.S. 66, 83 n.14\\n(1975)).\\n 13\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 14 of 66\\n\\n\\n A. Title VI Enforcement Regulations Contemplate Department of Justice\\n Enforcement Suits\\n\\n It is helpful to survey the Department of Justice’s regulations addressing Title\\n\\nVI enforcement, particularly because Congress, in § 602, specifically directed the\\n\\nDepartment of Justice (and other agencies) to make those regulations. When the\\n\\n“empowering provision” of a statute directs the agency to regulate as necessary to\\n\\ncarry out what Congress intends, “the validity of a regulation promulgated\\n\\nthereunder will be sustained so long as it is ‘reasonably related to the purposes of\\n\\nthe enabling legislation.’” Mourning v. Family Publ’ns Serv., Inc., 411 U.S. 356,\\n\\n369 (1973) (quoting Thorpe v. Hous. Auth. of City of Durham, 393 U.S. 268, 280–\\n\\n81 (1969)); see also Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 634 (1984)\\n\\n(deferring to “contemporaneous regulations issued by the agency responsible for\\n\\nimplementing a congressional enactment”).\\n\\n Individuals who believe that they have been subjected to discrimination in\\n\\nviolation of Title VI may file a written complaint. See 28 C.F.R. § 42.107(b). Upon\\n\\nreceipt of a complaint, the Department is required to “make a prompt investigation,”\\n\\nto determine whether a recipient of federal funding has failed to comply with the\\n\\nantidiscrimination requirements. Id. (c).8 If that investigation demonstrates that the\\n\\n\\n\\n\\n 8\\n Agencies are also required to conduct periodic compliance reviews to ensure that federal-\\nfunding recipients are complying with their obligations. 28 C.F.R. § 42.107(a). A compliance\\n 14\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 15 of 66\\n\\n\\nrecipient is not in compliance, then the Department must notify the recipient and\\n\\nattempt to resolve the matter by “informal means” if possible. Id. (d)(1).\\n\\n If the Department and recipient are unable to resolve the matter, then further\\n\\naction may be taken to induce compliance. Ibid. Such actions may include\\n\\nsuspending, terminating, refusing to grant or continue federal financial assistance,\\n\\nor “any other means authorized by law[.]” 28 C.F.R. § 42.108(a). The Department\\n\\nof Justice has characterized those other means as including, but not limited to\\n\\n“[a]ppropriate proceedings brought by the Department to enforce any rights of the\\n\\nUnited States under any law of the United States (including other titles of the Act),\\n\\nor any assurance or other contractual undertaking,” or “[a]ny applicable proceeding\\n\\nunder State or local law.” Id. (a)(1)–(2). The Department may not take such actions\\n\\nuntil it has determined that it cannot secure voluntary compliance, the Attorney\\n\\nGeneral has approved the action, and the non-complying party has been notified of\\n\\nits failure to comply and the action to be taken. Id. (d).\\n\\n Terminating or refusing to provide federal funding is the “ultimate\\n\\nsanction[.]” 28 C.F.R. § 50.3. To avoid such a drastic step, the Department’s\\n\\nguidelines urge agencies to take alternatives to achieve “prompt and full compliance\\n\\n\\n\\n\\nreview that indicates that there may be discrimination or noncompliance with agency regulations\\nmay also trigger an investigation. Id. (c).\\n 15\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 16 of 66\\n\\n\\nso that needed Federal assistance may commence or continue.” Ibid. Such\\n\\nalternatives include administrative action or court enforcement.\\n\\n Compliance with the nondiscrimination mandate of title\\n VI may often be obtained more promptly by appropriate\\n court action than by hearings and termination of\\n assistance. Possibilities of judicial enforcement include\\n (1) a suit to obtain specific enforcement of assurances,\\n covenants running with federally provided property,\\n statements or compliance or desegregation plans filed\\n pursuant to agency regulations, (2) a suit to enforce\\n compliance with the other titles of the 1964 Act, other\\n Civil Rights Acts, or constitutional or statutory provisions\\n requiring nondiscrimination, and (3) initiation of, or\\n intervention or other participation in, a suit for other relief\\n designed to secure compliance.\\n\\nIbid.\\n\\n Florida argues that Title VI (and § 505 of the Rehabilitation Act, which we\\n\\ndiscuss infra in Part III, pp. 23–33) do not authorize federal enforcement actions,\\n\\nand never have. It maintains that the cases the United States relies upon are limited\\n\\nto “specific performance of contractual assurances of compliance obtained from\\n\\nrecipients of federal funds.”\\n\\n It is hardly surprising that many Title VI cases are actions to ensure\\n\\ncompliance by recipients of federal funding. Title VI was intended to ensure that\\n\\n“funds of the United States are not used to support racial discrimination.” 110 Cong.\\n\\nRec. 6544 (1964) (statement of Sen. Humphrey). One of the easiest methods of\\n\\nachieving this goal was to require all recipients or seekers of federal financial\\n\\n\\n 16\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 17 of 66\\n\\n\\nassistance to execute assurances that they would not discriminate. Such assurances\\n\\nstated that the United States could enforce those agreements in court. See 28 C.F.R.\\n\\n§ 42.105(a)(1).\\n\\n B. Enforcing Title VI: Any Other Means Authorized By Law\\n\\n Even though government Title VI enforcement actions may be brought to\\n\\nensure a funding recipient’s assurances of nondiscrimination, Title VI does not limit\\n\\n“other means authorized by law” solely to such enforcement. United States v.\\n\\nMarion Cty. Sch. Dist., 625 F.2d 607 (5th Cir. 1980), cert. denied, 451 U.S. 910\\n\\n(1981), illustrates this principle. There, the Fifth Circuit determined that the United\\n\\nStates had authority to sue to enforce a school district’s contractual assurance to\\n\\ncomply with Title VI’s prohibition against discrimination. Id. at 617. The court\\n\\nobserved that the government’s complaint described the suit as one to compel\\n\\nspecific performance and enforce Title VI and the Fourteenth Amendment. Id. at\\n\\n609 n.3. The district court had dismissed the complaint because it concluded that,\\n\\nby establishing alternative means to achieve federal antidiscrimination objectives,\\n\\nCongress nullified the United States’s existing right to sue to enforce contracts. Id.\\n\\nat 611–12.\\n\\n The court rejected this reasoning, concluding that the Civil Rights Act did not\\n\\nlimit enforcement strategies to only those means set out explicitly in the Act. The\\n\\ngovernment has a right to “sue to enforce its contracts . . . as a matter of federal\\n\\n\\n 17\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 18 of 66\\n\\n\\ncommon law without the necessity of a statute.” Id. at 611. Congress may, by\\n\\nstatute, remove that right, but only if it offers “extremely, even unmistakably clear”\\n\\nevidence of such intent. Ibid. (citing United States v. United Mine Workers, 330\\n\\nU.S. 258, 272 (1947)).\\n\\n The language in § 602 supported this conclusion. It “clearly provide[d] that\\n\\nother means of action, even if not mentioned in the Act, are to be preserved.” Id. at\\n\\n612. The phrase “any other means authorized by law” showed that Congress\\n\\nintended to preserve other methods of enforcement—including filing suit. Id. at\\n\\n612–13. The Civil Rights Act contained a provision that explicitly preserved the\\n\\nexisting authority of the Attorney General, the United States, or any agency, to bring,\\n\\nor intervene in, any action or proceeding. Id. at 612 (citing 42 U.S.C. § 2000h-3).\\n\\n The Fifth Circuit only considered whether § 602 permitted contract\\n\\nenforcement actions. The United States’ response to the school district’s motion to\\n\\ndismiss had asserted that the Title VI and Fourteenth Amendment claims were not\\n\\nbrought as independent causes of action, but subsidiary to the contract claims. Id. at\\n\\n609 n.3.9 Because the Fifth Circuit resolved the case on the contractual question, it\\n\\n\\n\\n\\n 9\\n This is not necessarily the winning point Florida thinks it is. The United States’s authority\\nto bring contractual actions is, as the Fifth Circuit pointed out in United States v. Marion Cty. Sch.\\nDist., 625 F.2d 607, 611 (5th Cir. 1980), cert. denied, 451 U.S. 910 (1981), clearly established.\\nThe decision to emphasize the contract action may have been a strategic litigation decision, or it\\nmay have been made for any of a number of reasons. Regardless, we decline to accord substantial\\nweight to an assertion made in a brief in a different case over thirty years ago.\\n 18\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 19 of 66\\n\\n\\ndid not consider whether the United States had an “implied right of action under\\n\\nTitle VI,” or the “inherent authority to sue to enforce the Fourteenth Amendment.”\\n\\nId. at 616–17.\\n\\n Akin to Marion County, in United States v. Alabama, 828 F.2d 1532, 1547\\n\\n(11th Cir. 1987), cert. denied, 487 U.S. 1210 (1988), superseded by statute on other\\n\\ngrounds by J.W. v. Birmingham Bd. of Educ., 904 F.3d 1248 (11th Cir. 2018), we\\n\\nacknowledged that Title VI’s status as spending-power legislation, and the presence\\n\\nof federal funding was sufficient to permit the United States to file suit to enforce\\n\\nTitle VI’s antidiscrimination provisions. A review of the history of Title VI\\n\\ndemonstrates that the United States has consistently used such litigation to enforce\\n\\nits provisions.10\\n\\n Other cases that have considered § 602’s administrative-enforcement scheme\\n\\nhave recognized the Attorney General’s right to bring legal actions as an avenue of\\n\\nenforcing Title VI without specifying that only contract actions are permissible. In\\n\\n\\n\\n\\n 10\\n See, e.g., United States v. Fordice, 505 U.S. 717, 724 (1992); United States v. Harris\\nMethodist Forth Worth, 970 F.2d 94, 96 (5th Cir. 1992); United States v. Lovett, 416 F.2d 386,\\n390 n.4, 391 n.5 (8th Cir. 1969); United States v. Louisiana, 692 F. Supp. 642, 649–50 (E.D. La.\\n1988), vacated on other grounds by 715 F. Supp. 606 (E.D. La. 1990); United States v. Yonkers\\nBd. of Educ., 518 F. Supp. 191, 201 (S.D.N.Y. 1981); United States v. El Camino Cmty. Coll. Dist.,\\n454 F. Supp. 825, 826–27 (C.D. Cal. 1978), aff’d, 600 F.2d 1258 (9th Cir. 1979); United States v.\\nTexas, 321 F. Supp. 1043, 1057–58 & n.18 (E.D. Tex. 1970), supplemented by 330 F. Supp. 235\\n(E.D. Tex. 1971), aff’d by 447 F.2d 441 (5th Cir. 1971); United States v. Tatum Indep. Sch. Dist.,\\n306 F. Supp. 285, 288 (E.D. Tex. 1969); United States by Clark v. Frazer, 297 F. Supp. 319, 323\\n(M.D. Ala. 1968).\\n 19\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 20 of 66\\n\\n\\nNational Black Police Ass’n v. Velde, 712 F.2d 569, 572 (D.C. Cir. 1983), cert.\\n\\ndenied, 466 U.S. 963 (1984), the court considered whether agency officials’ failure\\n\\nto terminate federal funding to discriminatory local law enforcement violated their\\n\\nstatutorily-imposed duties. In concluding that terminating federal funding was\\n\\ndiscretionary, the court relied on Title VI’s construction to permit other enforcement\\n\\nschemes, including “referral of cases to the Attorney General, who may bring an\\n\\naction against the recipient.” Id. at 575. See also United States v. Maricopa Cty.,\\n\\n151 F. Supp. 3d 998, 1018–19 (D. Ariz. 2015), aff’d 889 F.3d 648 (9th Cir. 2018);\\n\\nUnited States v. Tatum Indep. Sch. Dist., 306 F. Supp. 285, 288 (E.D. Tex. 1969);\\n\\nUnited States v. Frazer, 297 F. Supp. 319, 323 (M.D. Ala. 1968).\\n\\n The phrase “any other means authorized by law” in § 602 appears to be\\n\\nroutinely interpreted to permit suit by the Department of Justice. See United States\\n\\nv. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1050 (5th Cir. 1984), cert. denied, 469\\n\\nU.S. 1189 (1985) (phrase refers to federal enforcement); Brown v. Califano, 627\\n\\nF.2d 1221, 1224 & n.10, 1227, 1233 & n.73 (D.C. Cir. 1980) (discussing referrals\\n\\nto the Department of Justice); Maricopa Cty., 151 F. Supp. 3d at 1018–19; Adams v.\\n\\nRichardson, 351 F. Supp. 636, 641 (D.D.C. 1972).\\n\\n A similar phrase in another statute has received a comparable interpretation.\\n\\nIn United States v. Miami Univ., 294 F.3d 797, 808 (6th Cir. 2002), the Sixth Circuit\\n\\nconsidered whether the phrase “any other action authorized by law with respect to\\n\\n\\n 20\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 21 of 66\\n\\n\\nthe recipient” in the Family Educational Rights and Privacy Act (“FERPA”)\\n\\nconferred standing upon the Department of Education to seek injunctive relief. The\\n\\ncourt observed that, while FERPA contained a general authorization to permit the\\n\\nSecretary of Education to “take appropriate actions to enforce” FERPA, that alone\\n\\nwas insufficient to permit enforcement litigation. Ibid. (citing 20 U.S.C. § 1232g(f)).\\n\\nHowever, another provision in FERPA offered the Secretary a menu of options in\\n\\nresponse to noncompliance with FERPA, including “any other action authorized by\\n\\nlaw with respect to the recipient.” Id. at 807–08 (citing 20 U.S.C. § 1234c(a)(4)).\\n\\nThe court concluded that this language “expressly” permitted the Secretary to sue to\\n\\nenforce FERPA “in lieu of its administrative remedies.” Id. at 808. In reaching this\\n\\nconclusion, the Sixth Circuit relied on Baylor Univ. Med. Ctr., 736 F.2d at 1050,\\n\\nwhich had interpreted the Rehabilitation Act (encompassing § 602), and National\\n\\nBlack Police Ass’n, 712 F.2d at 575, which discussed § 602.\\n\\n A review of the statute, the regulations that Congress expressly directed the\\n\\nagencies to create, and precedent demonstrates that Title VI contains an\\n\\nadministrative enforcement scheme and permits judicial enforcement of its\\n\\nprohibition against discrimination. We next turn to the Rehabilitation Act.\\n\\n III. Section 505 of the Rehabilitation Act\\n\\n The Rehabilitation Act established a “comprehensive federal program” that\\n\\nCongress intended to benefit individuals with disabilities. Consolidated Rail Corp.\\n\\n\\n 21\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 22 of 66\\n\\n\\nv. Darrone, 465 U.S. 624, 626 (1984). It was originally enacted without an\\n\\nenforcement provision. See Community Television of S. Cal. v. Gottfried, 459 U.S.\\n\\n498, 509 (1983). Because § 504 was “patterned after Title VI of the Civil Rights\\n\\nAct of 1964, it was understood that responsibility for enforcing it . . . would lie with\\n\\nthose agencies administering the federal financial assistance programs.” Ibid.\\n\\n(citing S. Rep. No. 93-1297, at 39–40 (1974)).11\\n\\n A. Rehabilitation Act Enforcement Regulations Tracked Title VI\\n Regulations\\n\\n The Department of Health, Education, and Welfare (“HEW”) developed\\n\\nimplementing regulations for § 504, and its Secretary was assigned to coordinate\\n\\nenforcement across federal departments and agencies. See S. Rep. No. 93-1297, at\\n\\n40 (1974); Exec. Order No. 11,914, 41 Fed. Reg. 17,871 (Apr. 28, 1976), revoked\\n\\nby Exec. Order No. 12,250, 45 Fed. Reg. 72,995 (Nov. 2, 1980). HEW’s 1977\\n\\nregulations incorporated by reference its procedures under Title VI of the Civil\\n\\nRights Act on an interim basis. See Nondiscrimination on the Basis of Handicap in\\n\\nPrograms and Activities Receiving or Benefitting From Federal Financial\\n\\n\\n\\n\\n 11\\n Congress amended the Rehabilitation Act in 1974. Legislative history from that\\namendment reveals that Congress intended § 504 to lead to “implementation of a compliance\\nprogram” similar to Title VI, including regulations, investigation, review, attempts to ensure\\nvoluntary compliance, and sanctions such as termination of federal funds, or “other means\\notherwise authorized by law.” S. Rep. No. 93-1297, at 39-40 (1974). This legislative history is\\nespecially relevant in light of the 1978 Amendments to the Rehabilitation Act. See infra pp. 25–\\n27.\\n 22\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 23 of 66\\n\\n\\nAssistance, 42 Fed. Reg. 22685 (May 4, 1977) (adopting 45 C.F.R. § 80.6–80.10\\n\\nand Part 81 of Title 45 of the C.F.R. which specify “[T]itle VI complaint and\\n\\nenforcement procedures” to implement § 504).\\n\\n HEW’s Title VI procedures were identical to those adopted by the Department\\n\\nof Justice to implement Title VI, discussed supra at Part II.A, pp. 14–17.12 They\\n\\npermit individuals to file complaints, 45 C.F.R. § 80.7(b), which require an\\n\\ninvestigation. Id. (c). Agencies must attempt to resolve the matter by “informal\\n\\nmeans.” Id. (d). Like the Department of Justice’s regulations, they identify other\\n\\nactions that may be taken against noncompliant funding recipients: termination of\\n\\nfunding and referral to the Department of Justice for enforcement proceedings.\\n\\nCompare 45 C.F.R. § 80.8(a), with 28 C.F.R. § 42.108(a).\\n\\n In January 1978, HEW issued coordination regulations for the Rehabilitation\\n\\nAct. See Implementation of Executive Order 11,914: Nondiscrimination on the\\n\\nBasis of Handicap in Federally Assisted Programs, 43 Fed. Reg. 2132 (Jan. 13,\\n\\n1978). Executive Order 11,914 had directed HEW’s Secretary to coordinate\\n\\nimplementation of § 504. Exec. Order 11,914, 41 Fed. Reg. 17,871 (Apr. 28, 1976);\\n\\n\\n\\n\\n 12\\n In 1979, the Department of Education Organization Act divided HEW into the\\nDepartment of Education and the Department of Health and Human Services (“HHS”). See\\nNational Wrestling Coaches Ass’n v. U.S. Dep’t of Educ., 263 F. Supp. 2d 82, 91 (D.D.C. 2003).\\nHEW’s regulations promulgating § 504 of the Rehabilitation Act remain in HHS’s regulations.\\nSee 45 C.F.R. §§ 80.7–80.8.\\n 23\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 24 of 66\\n\\n\\nConsolidated Rail Corp., 465 U.S. at 634. The 1978 regulations directed agencies\\n\\nto establish a system to enforce § 504, which was to include “[t]he enforcement and\\n\\nhearing procedures that the agency has adopted for the enforcement of [T]itle VI of\\n\\nthe Civil Rights Act of 1964 . . . .” 43 Fed. Reg. 2137, § 85.5(a).\\n\\n In November 1978, Congress amended the Rehabilitation Act. There are two\\n\\naspects to this amendment that are significant for the purposes of this case. First,\\n\\nCongress amended § 504. It directed that agencies “shall promulgate such\\n\\nregulations as may be necessary” to carry out the 1978 amendments. See Pub. L.\\n\\n95-602, Title I, § 119, codified at 29 U.S.C. § 794(a). The agencies were required\\n\\nto submit copies of any proposed regulation to “appropriate authorizing committees\\n\\nof the Congress . . . .” Ibid.\\n\\n Second, Congress enacted § 505, which established the enforcement\\n\\nprocedures for violations of the Rehabilitation Act, including § 504. See Pub. L. 95-\\n\\n602, Title I, § 120, codified at 29 U.S.C. § 794a. As we have discussed, § 505\\n\\nadopted the “remedies, procedures, and rights” set out in Title VI, and specified that\\n\\nthose remedies “shall be available to any person aggrieved by any act or failure to\\n\\nact by any recipient of Federal assistance or Federal provider of such assistance\\n\\nunder section 794 of this title.” 29 U.S.C. § 794a(a)(2).\\n\\n In Consolidated Rail Corp., the Supreme Court observed that the effect of\\n\\nthese amendments was to “incorporate the substance of the Department’s regulations\\n\\n\\n 24\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 25 of 66\\n\\n\\ninto the statute.” 465 U.S. at 634 n.15. Legislative history demonstrates that\\n\\nCongress intended § 505(a)(2) to codify HEW’s regulations for § 504 enforcement.\\n\\nId. at 635. Specifically, the “regulations promulgated by the Department of Health,\\n\\nEducation, and Welfare with respect to procedures, remedies, and rights under\\n\\nsection 504 conform with those promulgated under Title VI. Thus, this amendment\\n\\ncodifies existing practice as a specific statutory requirement.”13 S. Rep. No. 95-890,\\n\\nat 19 (1978); Consolidated Rail Corp., 465 U.S. at 635 n.16 (“[T]hese Department\\n\\nregulations incorporated Title VI regulations governing ‘complaint and enforcement\\n\\nprocedures . . . .’”); see also School Bd. of Nassau Cty., Fla. v. Arline, 480 U.S. 273,\\n\\n279 (1987); United States v. Bd. of Trustees for Univ. of Ala., 908 F.2d 740, 746–47\\n\\n(11th Cir. 1990); Miener v. Missouri, 673 F.2d 969, 978 (8th Cir. 1982).\\n\\n In 1980, President Carter issued an Executive Order assigning responsibility\\n\\nfor coordinating the implementation and enforcement of Title VI, the Rehabilitation\\n\\n\\n\\n\\n 13\\n Florida points to language in legislative history from the 1974 Amendments that it asserts\\nshowed that Congress only intended to create a private right of action. It is true that Congress\\nstated that it intended to “permit a judicial remedy through a private right of action.” S. Rep. 93-\\n1297, at 40 (1974). But this portion of the report also discusses Congress’s vision of a “compliance\\nprogram” similar to Title VI enforcement. Ibid.; see also supra, note 11 (discussing the 1974\\nAmendments’ legislative history). Congress’s decision in 1978 to codify existing regulations that\\nspecifically required agencies to use Title VI’s administrative enforcement procedures undercuts\\nFlorida’s contentions. Congress’s decision, in 1978, to mention a private remedy is not surprising,\\ngiven the litigation over whether Title VI implied a private right of action. See Sandoval, 532 U.S.\\nat 280; Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); Guardians Ass’n v. Civil Serv.\\nComm’n of City of N.Y., 463 U.S. 582, 587 (1983).\\n 25\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 26 of 66\\n\\n\\nAct, and Title IX of the 1972 Education Amendments14 to the Attorney General. See\\n\\nExec. Order No. 12,250, 45 Fed. Reg. 72,995 (Nov. 2, 1980), reprinted in 42 U.S.C.\\n\\n§ 2000d-1, app. Executive Order 12,250 directs the Attorney General to review the\\n\\nexisting rules and regulations to determine their adequacy and consistency, as well\\n\\nas “develop standards and procedures for taking enforcement actions and for\\n\\nconducting investigations and compliance reviews.” Ibid. Executive Order 12,250\\n\\nrevoked Executive Order No. 11,914. Id. at 72997. The Executive Order also\\n\\npreserved the coordinating regulations HEW had promulgated, which by then fell\\n\\nunder the auspices of the newly-formed Department of Health and Human Services\\n\\n“HHS”).\\n\\n The present regulations of the Secretary of Health and\\n Human Services relating to the coordination of the\\n implementation of Section 504 of the Rehabilitation Act\\n of 1973, as amended, shall be deemed to have been issued\\n by the Attorney General pursuant [to] this Order and shall\\n continue in effect until revoked or modified by the\\n Attorney General.\\n\\nIbid. The Department of Justice’s regulations for enforcement of § 504 are the same\\n\\nas those HEW promulgated in 1978. Compare 28 C.F.R. § 41.5, with 43 Fed. Reg.\\n\\n2137, § 85.5(a).\\n\\n\\n\\n\\n 14\\n Title IX was also modeled after Title VI. See Cannon, 441 U.S. at 694. Section 902 of\\nTitle IX is substantially similar to § 602 of Title VI. Compare 20 U.S.C. § 1682, with 42 U.S.C.\\n§ 2000d-1.\\n 26\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 27 of 66\\n\\n\\n As tedious as this administrative and regulatory history may be, it is essential\\n\\nto understand what Congress did when it enacted the enforcement provision of Title\\n\\nII. Sections 504 and 505 of the Rehabilitation Act, and their implementing\\n\\nregulations, established a system of administrative enforcement that replicated the\\n\\none in § 602 of the Civil Rights Act. This system permits both individual complaints\\n\\nand federal agency oversight to lead to investigations that may end with federal\\n\\nenforcement actions. This is illustrated in Rehabilitation Act enforcement litigation.\\n\\n B. Department of Justice Enforcement of the Rehabilitation Act\\n\\n The United States and Florida dispute whether the United States has enforced\\n\\nthe Rehabilitation Act through litigation. Florida argues that, because there have\\n\\nbeen no such enforcement actions, this undercuts the United States’s argument that\\n\\nCongress knew the Rehabilitation Act could trigger federal litigation, and so\\n\\nincorporated the same intent in Title II.\\n\\n The United States has filed suit to enforce the Rehabilitation Act. There\\n\\nappear to be fewer cases than Title VI enforcement, but this is not surprising. Federal\\n\\ninvestigations may not always culminate in litigation. The Rehabilitation Act was\\n\\nintended to track Title VI, which requires that agencies attempt to achieve voluntary\\n\\ncompliance through informal means before terminating funding or taking “any other\\n\\nmeans authorized by law.” 42 U.S.C. § 2000d-1; 29 U.S.C. § 794a(a)(2).\\n\\n\\n\\n\\n 27\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 28 of 66\\n\\n\\n Although much of the litigation under the Rehabilitation Act was brought by\\n\\nprivate parties, that does not automatically lead to the conclusion that a private right\\n\\nof action is the sole method of enforcement. Reliance on a private right of action\\n\\nmay be more attractive to individuals who want to ensure that they receive relief that\\n\\nbest fits their circumstances and goals. For example, they can control the progress\\n\\nof the litigation or settle on their own terms. See Block, supra, at 9–10. Litigation\\n\\nover whether there was an implied private right of action in the Rehabilitation Act\\n\\nrecognized that the Rehabilitation Act also contained an administrative-enforcement\\n\\nsystem. See Miener v. Missouri, 673 F.2d 969, 978 (8th Cir. 1982); Pushkin v.\\n\\nRegents of Univ. of Colo., 658 F.2d 1372, 1381 (10th Cir. 1981); Camenisch v. Univ.\\n\\nof Tex., 616 F.2d 127, 133–34 (5th Cir. 1980), vacated on other grounds, 451 U.S.\\n\\n390 (1981); Kling v. Los Angeles Cty., 633 F.2d 876, 879 (9th Cir. 1980); NAACP\\n\\nv. Med. Ctr., Inc., 559 F.2d 1247, 1254–55, 1258 (3d Cir. 1979).\\n\\n The United States has brought suits to ensure compliance with the\\n\\nRehabilitation Act, and each of those suits took place after the relevant agency had\\n\\nreceived a complaint and investigated. See United States v. Bd. of Trustees for Univ.\\n\\nof Ala., 908 F.2d 740, 742 (11th Cir. 1990) (deaf student filed complaint in 1979\\n\\nalleging University improperly denied sign-language interpreter services,\\n\\ngovernment filed suit to enforce Rehabilitation Act); United States v. Baylor Univ.\\n\\nMed. Ctr., 736 F.2d 1039, 1041 (5th Cir. 1984), cert. denied, 469 U.S. 1189 (1985)\\n\\n\\n 28\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 29 of 66\\n\\n\\n(deaf patient filed complaint that hospital refused to permit her to bring an\\n\\ninterpreter, hospital refused to allow HHS to investigate); United States v. Univ.\\n\\nHosp. of State Univ. of N.Y. at Stony Brook, 729 F.2d 144, 147 (2d Cir. 1984) (United\\n\\nStates filed suit after receiving a complaint relating to medical treatment of disabled\\n\\nbaby).\\n\\n Florida argues that Baylor Univ. Med. Ctr. was not an enforcement action\\n\\nbecause the central question was whether the receipt of Medicare and Medicaid\\n\\nfunds made the hospital a recipient of federal financial assistance subject to § 504.\\n\\nFlorida is correct about the nature of the central question, but it errs in characterizing\\n\\nBaylor as anything other than an enforcement action. The United States and the\\n\\nMedical Center had both sought summary judgment on the question of federal\\n\\nfunding, and the district court awarded it to the United States. Id. at 1041–42. It\\n\\nconcluded that the Medical Center was in violation of § 504 and suspended all future\\n\\nMedicare and Medicaid payments to the Medical Center until it complied with the\\n\\ninvestigation. Id. at 1042. The question of the receipt of federal financial assistance\\n\\nwas essential to determining whether the Medical Center was violating § 504 and\\n\\nwhether the United States could enforce § 504. Ibid.\\n\\n The Fifth Circuit affirmed the conclusion that the hospital was a federal-\\n\\nfunding recipient but determined that the district court abused its discretion in\\n\\nsuspending the funding immediately. Id. at 1050. It relied on the history of the\\n\\n\\n 29\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 30 of 66\\n\\n\\nRehabilitation Act and its relationship to Title VI. Administrative enforcement\\n\\nremedies, the court explained, were inconsistent with an immediate, automatic\\n\\nsuspension of federal funding because § 602 sets out very specific procedures to be\\n\\nimplemented before terminating funding. Ibid. The court also specifically stated\\n\\nthat agencies seeking to enforce § 504 may “resort to ‘any other means authorized\\n\\nby law’—including the federal courts.” Ibid. (citing United States v. Marion Cty.\\n\\nSch. Dist., 625 F.2d 607 (5th Cir. 1980)).\\n\\n The Second Circuit has considered the nature of the United States’s authority\\n\\nto enforce § 504. In Stony Brook, 729 F.2d at 148, the United States filed suit,\\n\\nalleging that a hospital had violated § 504 and accompanying regulations by refusing\\n\\nto provide information regarding medical care provided to a baby born with severe\\n\\ndisabilities. The Second Circuit, applying the assumption that § 504 covered the\\n\\nhospital, and determining that the baby was a “handicapped individual,” id. at 155,\\n\\nnonetheless concluded that § 504 did not apply to decisions about medical treatment,\\n\\nand that HHS could not proceed in its investigation. Id. at 157–59.15 Importantly,\\n\\n\\n\\n 15\\n It is important to note that in United States v. Univ. Hosp. of State Univ. of N.Y. at Stony\\nBrook, 729 F.3d 144, 161 (2d Cir. 1984), the relevant Rehabilitation Act claim was whether the\\nbaby was denied certain surgical interventions on the basis of her disability. The Second Circuit\\npointed out that the hospital was always willing to perform the surgeries if her parents consented,\\nthus the baby was treated in an “evenhanded manner” by the hospital. Ibid. The United States’s\\nclaims in this case are consistent with (although not limited to) the kind of claims raised in\\nOlmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 587 (1999), and, inter alia, concern whether\\nFlorida is violating Title II of the ADA by failing to provide community placements for individuals\\nfor whom a less restrictive setting than an institution is appropriate. This is a far cry from a case\\n 30\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 31 of 66\\n\\n\\nthe court did not conclude that the government lacked any authority to enforce § 504.\\n\\nRather, with the issue of the United States’s authority before it, the court concluded\\n\\nthat this particular investigation and enforcement action exceeded the\\n\\ncongressionally delegated enforcement authority under the Rehabilitation Act\\n\\nbecause Congress did not intend for agencies to insert themselves in those\\n\\ncircumstances. Id. at 160.\\n\\n A review of the legislative and regulatory background of the Rehabilitation\\n\\nAct, its existing regulations, and legal precedent demonstrate that the Act\\n\\nincorporated a system of administrative procedures that included a complaint,\\n\\ncompliance reviews, investigation, and possible enforcement action by the Attorney\\n\\nGeneral. As we have discussed above, Congress was fully aware of this system, it\\n\\nis consistent with what Congress intended, and the 1978 Amendments to § 504 and\\n\\n§ 505 demonstrate that Congress codified the existing administrative practice of\\n\\nusing Title VI procedures. Further, by 1980, the Attorney General had been tasked\\n\\nwith enforcing Title VI, the Rehabilitation Act, Title IX, and other similar statutes.\\n\\nIt is with this background that we now address the specific language in the\\n\\nenforcement provision of Title II of the ADA.\\n\\n\\n\\n\\nin which a federal agency sought to investigate (and possibly override) parents’ reasonable,\\ninformed medical decisions for their child. See also American Acad. of Pediatrics v. Heckler, 561\\nF. Supp. 395 (D.D.C. 1983).\\n 31\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 32 of 66\\n\\n\\n IV. Enforcement of Title II of the ADA\\n\\n The United States contends that by incorporating the “remedies, procedures,\\n\\nand rights” of the Rehabilitation Act (and accordingly Title VI), “Congress adopted\\n\\na federal administrative enforcement scheme in which persons claiming unlawful\\n\\ndiscrimination may complain to and enlist the aid of federal agencies in compelling\\n\\ncompliance, potentially leading to a DOJ lawsuit.” Florida argues that, because the\\n\\nadministrative process was not designed to vindicate individual rights, such actions\\n\\n“taken at the executive’s discretion and without the complainant’s involvement”\\n\\ndeprive the terms “right” and “remedy” of all meaning. Florida relies on precedent\\n\\nthat recognized a private right of action under the Rehabilitation Act and rejected\\n\\nadministrative exhaustion, particularly Camenisch v. Univ. of Tex., 616 F.2d 127\\n\\n(5th Cir. 1980), vacated on other grounds, 451 U.S. 390 (1981).\\n\\n In recognizing private rights of action, courts have emphasized the potentially\\n\\nunsatisfactory nature of administrative remedies for individuals under Title VI and\\n\\nthe Rehabilitation Act. See id. at 135. That argument lends support to finding an\\n\\nimplied cause of action to permit individuals to seek personal redress. Ibid. It does\\n\\nnot, however, automatically lead to the conclusion that government enforcement is\\n\\nimpermissible. Ensuring that public entities subject to federal statutes comply with\\n\\nthose states ultimately vindicates individuals’ personal rights. Although some\\n\\nplaintiffs may prefer private remedies, that fact does not persuade us that we should\\n\\n\\n 32\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 33 of 66\\n\\n\\nignore Congress’s decision to enact a statutory scheme that permits the government\\n\\nto enforce Title II.\\n\\n A. Title II Enforcement Regulations Follow Regulations Promulgated\\n Under the Rehabilitation Act and Title VI\\n\\n Congress directed the Attorney General to “promulgate regulations . . . that\\n\\nimplement” Title II. 42 U.S.C. § 12134(a). Congress directed that those regulations\\n\\n“be consistent with this chapter and with the coordination regulations under part 41\\n\\nof title 28, Code of Federal Regulations (as promulgated by the Department of\\n\\nHealth, Education, and Welfare on January 13, 1978), applicable to recipients of\\n\\nFederal financial assistance under section 794 of Title 29.” Id. (b).\\n\\n As we have discussed above in Part III.A, pp. 23–28, the 1978 regulations\\n\\nrequired agencies to establish enforcement procedures for § 504. See\\n\\nImplementation of Executive Order 11,914: Nondiscrimination on the Basis of\\n\\nHandicap in Federally Assisted Programs, 43 Fed. Reg. 2132, 2137, § 85.5(a) (Jan.\\n\\n13, 1978). Part 41 of title 28 of the Code of Federal Regulations contains the\\n\\nregulations that the Attorney General promulgated in response to Executive Order\\n\\n12,250, Nondiscrimination on the Basis of Handicap in Federally Assisted\\n\\nPrograms, which, as we have already observed, are the same as HEW’s January 13,\\n\\n1978 regulations. Those regulations required agencies to use the “enforcement and\\n\\nhearing procedures that the agency has adopted for the enforcement of [T]itle VI of\\n\\n\\n\\n 33\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 34 of 66\\n\\n\\nthe Civil Rights Act of 1964[.]” Compare 28 C.F.R. § 41.5, with 43 Fed. Reg. 2137,\\n\\n§ 85.5(a).\\n\\n The Department of Justice then issued regulations that, consistent with\\n\\nCongress’s directive in § 12134, established an administrative scheme for Title II\\n\\nsimilar to the ones available for the Rehabilitation Act and Title VI. See 28 C.F.R.\\n\\n§§ 35.170–35.174, 35.190. An individual may file a complaint with the appropriate\\n\\nfederal agency, any agency that provides funding to the public entity allegedly\\n\\ndiscriminating, or with the Department of Justice. 28 C.F.R. § 35.170. Agencies\\n\\n“shall” investigate complaints, may conduct compliance reviews, and, if appropriate,\\n\\nattempt informal resolution. 16 Id. § 35.172(a)–(c). If an agency can obtain voluntary\\n\\ncompliance, then such agreements must provide for enforcement by the Attorney\\n\\nGeneral. Id. § 35.173(b)(5).\\n\\n\\n\\n 16\\n Florida points out that the Department of Justice amended its regulations to clarify that\\nagencies are not obligated to investigate administrative complaints alleging violations of Title II.\\nIn 2010, the Department modified its regulations. See Nondiscrimination on the Basis of Disability\\nin State and Local Government Services, 75 Fed. Reg. 56,164, 56,228 (Sept. 15, 2010). The\\nDepartment explained that, since Title II regulations went into effect, it had “received many more\\ncomplaints alleging violations of [T]itle II than its resources permit it to resolve.” Ibid. It modified\\na regulation to clarify that designated agencies may exercise discretion in determining which\\ncomplaints they select to resolve. Agencies may still “engage in conscientious enforcement”\\nwithout fully investigating each complaint. Ibid. Rather, the Department explained that the\\nmodification was to permit agencies to assess whether agencies are likely to succeed in\\nenforcement, whether the enforcement is consistent with the agencies’ policies, and whether\\nagencies’ limited resources are best spent on a particular complaint. Ibid. A person who complains\\nto an agency may still file suit regardless of the agency’s resolution of the matter. 28 C.F.R.\\n§ 35.172(d). As we have already said, this argument certainly supports an implied private right of\\naction. But our concern is with government, rather than private, enforcement.\\n\\n\\n 34\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 35 of 66\\n\\n\\n Agencies are required to issue a letter of findings that provides public entities\\n\\ntheir findings of fact, conclusions of law, description of remedies for violations, and\\n\\nnotice of available rights and procedures. Id. § 35.172(c). If a public entity “declines\\n\\nto enter into voluntary compliance negotiations or if negotiations are unsuccessful,\\n\\nthe designated agency shall refer the matter to the Attorney General with a\\n\\nrecommendation for appropriate action.” Id. § 35.174. Complainants may file\\n\\nprivate suits under 42 U.S.C. § 12133, regardless of whether or not an agency finds\\n\\na violation. Id. § 35.172(d).\\n\\n The district court dismissed Congress’s directive to the Attorney General in\\n\\n§ 12134(a)–(b) to implement regulations that must be consistent with Title II and the\\n\\nRehabilitation Act enforcement regulations. C.V., 209 F. Supp. 3d at 1288. Relying\\n\\non Elwell v. Oklahoma ex rel. Bd. of Regents of Univ. of Okla., 693 F.3d 1303, 1313\\n\\n(10th Cir. 2012), and Zimmerman v. Or. Dep’t of Justice, 170 F.3d 1169, 1179 (9th\\n\\nCir. 1999), the district court explained that § 12134(a) “authorizes the Attorney\\n\\nGeneral to define the substantive standards for discrimination under Title II,” and\\n\\n“the consistency mandate merely ensures that Title II’s substantive standards are\\n\\nanalogous to those under the Rehabilitation Act.” C.V., 209 F. Supp. 3d at 1288. It\\n\\nquoted Zimmerman, 170 F.3d at 1179, for the proposition that “42 U.S.C. § 12134(b)\\n\\ndoes not suggest that Congress intended to incorporate any provisions from the\\n\\n\\n\\n\\n 35\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 36 of 66\\n\\n\\nRehabilitation Act into Title II.” C.V., 209 F. Supp. 3d at 1288 (emphasis in\\n\\noriginal).17\\n\\n But Elwell and Zimmerman addressed a very different issue than the one\\n\\npresented here. Both of those cases considered whether Title II permitted\\n\\nindividuals to bring employment discrimination claims against public entities. See\\n\\nElwell, 693 F.3d at 1305–06; Zimmerman, 170 F.3d at 1171–72. In those cases,\\n\\nplaintiffs contended that, because Title II incorporated § 505 of the Rehabilitation\\n\\nAct’s “remedies, procedures, and rights,” Congress intended to adopt the\\n\\nRehabilitation Act’s prohibition on employment discrimination. Elwell, 693 F.3d at\\n\\n1312; Zimmerman, 170 F.3d at 1179. Both Elwell and Zimmerman firmly rejected\\n\\nthis argument, pointing out that Congress adopted the Rehabilitation Act’s\\n\\nprocedural rights in Title II, rather than its substantive prohibitions on employment\\n\\ndiscrimination. After all, Congress had already extensively addressed employment\\n\\ndiscrimination in Title I of the ADA. Elwell, 693 F.3d at 1312; Zimmerman, 170\\n\\nF.3d at 1179. Both opinions also rejected the argument that, because the Attorney\\n\\n\\n\\n 17\\n The district court made a critical omission when it quoted Zimmerman v. Or. Dep’t of\\nJustice, 170 F.3d 1169, 1179 (9th Cir. 1999). The full sentence reads: “Unlike 42 U.S.C. § 12133,\\n42 U.S.C. § 12134(b) does not suggest that Congress intended to incorporate any provisions from\\nthe Rehabilitation Act into Title II.” Ibid. (emphasis added). The Ninth Circuit emphasized that\\nthe requirement of “consistency” in areas of regulatory overlap did not demonstrate an intent to\\nincorporate substantive provisions concerning an entirely separate subject (employment) that\\nCongress had already addressed exhaustively in Title I. Id. at 1179–80. Here, by contrast, the\\nrequirement of consistency makes far more sense when Title II addresses public services provided\\nby public entities and the relevant regulations address the same subject.\\n 36\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 37 of 66\\n\\n\\nGeneral’s Title II regulations were required to be consistent with certain\\n\\nRehabilitation Act regulations, it adopted the Rehabilitation Act regulations that\\n\\nprohibited discrimination in employment. Elwell, 693 F.3d at 1312–13;\\n\\nZimmerman, 179 F.3d at 1179–80.\\n\\n Elwell and Zimmerman do support a conclusion that the Attorney General’s\\n\\nregulations to implement Title II were intended to be consistent with the\\n\\nRehabilitation Act in the areas where they might overlap. The regulations included\\n\\ndefinitions of certain terms, identified types of prohibited discrimination, and\\n\\naccessibility standards. Zimmerman, 170 F.3d at 1179–80; Elwell, 693 F.3d at 1313.\\n\\nTitle II: (1) expressly addresses public services provided by public entities; 42\\n\\nU.S.C. § 12132; (2) directly incorporates the rights, procedures, and remedies\\n\\navailable in § 505(a)(2) of the Rehabilitation Act for violations of the prohibition on\\n\\ndiscrimination by programs or activities that receive federal financial assistance; id.\\n\\nat § 12133; and (3) directs that regulations to implement Title II must be “consistent”\\n\\nwith certain Rehabilitation Act regulations that apply to recipients of Federal\\n\\nfinancial assistance. Id. § 12134.\\n\\n The consistency requirement in § 12134(b) leads to the conclusion that\\n\\nCongress intended the Attorney General’s Title II regulations to adopt the\\n\\nRehabilitation Act’s Title-VI-type enforcement procedures because Title II’s\\n\\nenforcement procedure used the Rehabilitation Act’s enforcement structure. See S.\\n\\n\\n 37\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 38 of 66\\n\\n\\nRep. No. 101-116, at 57 (1989) (explaining that the Attorney General should use\\n\\n§ 504 enforcement procedures and its role under Executive Order 12,250 as “models\\n\\nfor regulation); H.R. Rep. No. 101-485 II, at 98 (1990), reprinted in 1990\\n\\nU.S.C.C.A.N. 303, 381 (same).\\n\\n We considered that the Attorney General’s Title II regulations were “entitled\\n\\nto controlling weight” in Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1179 (11th\\n\\nCir. 2003). “Congress expressly authorized the Attorney General to make rules with\\n\\nthe force of law interpreting and implementing the ADA provisions generally\\n\\napplicable to public services.” Ibid. (citing 42 U.S.C. § 12134(a)). See also\\n\\nOlmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597–98 (1999) (“Because the\\n\\nDepartment [of Justice] is the agency directed by Congress to issue regulations\\n\\nimplementing Title II . . . its views warrant respect.” (citation omitted)).\\n\\n These regulations are reasonably related to the legislative purpose of the\\n\\nADA, which included federal enforcement. Id. at 1179 & n. 25. They are consistent\\n\\nwith the remedial structure that Congress selected for Title II, in that they adopt\\n\\nsimilar enforcement procedures to the Rehabilitation Act and Title VI, as Congress\\n\\ndirected. Thus, “[b]ecause Congress explicitly delegated authority to construe the\\n\\nstatute by regulation, in this case we must give the regulations legislative and hence\\n\\ncontrolling weight unless they are arbitrary, capricious, or plainly contrary to the\\n\\nstatute.” United States v. Morton, 467 U.S. 822, 834 (1984), accord Yeskey v. Com.\\n\\n\\n 38\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 39 of 66\\n\\n\\nof Pa. Dep’t of Corr., 118 F.3d 168, 171 (3d Cir. 1997), aff’d sub nom. Pennsylvania\\n\\nDep’t of Corr. v. Yeskey, 524 U.S. 206 (1998); Kornblau v. Dade Cty., 86 F.3d 193,\\n\\n194 (11th Cir. 1996).\\n\\n B. Title II of the ADA Permits Department of Justice Enforcement\\n\\n To be sure, the Attorney General may not, by regulation, employ a cause of\\n\\naction where none was intended. See Sandoval, 532 U.S. at 291 (concluding that\\n\\nregulations may not create a private right of action where Congress did not so\\n\\nintend); Marshall v. Gibson’s Prods., Inc. of Plano, 584 F.2d 668, 677–78 & n.16\\n\\n(5th Cir. 1978). But Title II incorporated the Rehabilitation Act’s procedural rights.\\n\\nSee Elwell, 693 F.3d at 1312; Zimmerman, 170 F.3d at 1179. Congress chose to use\\n\\n§ 505(a)(2) of the Rehabilitation Act as the enforcement mechanism for Title II of\\n\\nthe ADA, with full knowledge that those provisions established administrative\\n\\nenforcement and oversight in accordance with Title VI. Congress also knew that,\\n\\nby adopting § 502(a)(2), it incorporated Title VI’s “any other means authorized by\\n\\nlaw” provision.\\n\\n The district court concluded that the “simpler explanation” was that\\n\\n“Congress did not incorporate all ‘remedies, procedures, and rights’ available under\\n\\nTitle VI—it incorporated only those ‘remedies, procedures, and rights’ that may be\\n\\nexercised by a ‘person alleging discrimination.’” C.V., 209 F. Supp. 3d at 1286–87\\n\\n(quoting 42 U.S.C. § 12133) (emphasis in original). It reasoned that, as “the power\\n\\n\\n 39\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 40 of 66\\n\\n\\nto terminate federal funding under Title VI has no foothold in Title II,” the available\\n\\nenforcement remedy is simply a private lawsuit.18 Id. at 1287.\\n\\n This conclusion is inconsistent with the statutory text, and Congress’s\\n\\ndirective that Title II’s remedies are the same as the Rehabilitation Act. See Barnes,\\n\\n536 U.S. at 185. At the time Congress enacted the ADA, there had been a number\\n\\nof decisions from the Supreme Court and the circuits regarding the availability of an\\n\\nimplied private right of action under Title VI and the Rehabilitation Act. If Congress\\n\\nonly intended to create a private right of action under Title II, then its decision to\\n\\ncross-reference to § 505 of the Rehabilitation Act, which expressly incorporates Title\\n\\nVI, including its administrative enforcement scheme in § 602, would be mystifying,\\n\\nespecially because it had directed the Attorney General to develop regulations that\\n\\nwere to be consistent with Rehabilitation Act enforcement procedures that included\\n\\nTitle VI enforcement. See 42 U.S.C. § 12134.\\n\\n It is true that Title II, unlike the Rehabilitation Act and Title VI, does not\\n\\ncondition the right to enforce the statute on a defendant’s receipt of federal funding.\\n\\n\\n\\n\\n 18\\n The district court’s reliance on Alexander v. Sandoval, 532 U.S. 275 (2001), is\\nmisplaced. There, the Supreme Court, interpreting § 602 of the Civil Rights Act, explained that\\n§ 602 did not confer rights on individuals, rather it focused on federal agencies’ responsibilities.\\nId. at 289. The implication from Sandoval, as was observed in United States v. Maricopa Cty.,\\n151 F. Supp. 3d 998, 1018 (D. Ariz. 2015), is that when enforcement provisions focus on a\\nparticular party, it is more likely that Congress gave that party the ability to enforce the provision.\\nSandoval’s logic lends more support to concluding that there is a right of action for federal agency\\nenforcement in § 602’s reference to “any other means authorized by law.” Ibid.\\n 40\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 41 of 66\\n\\n\\nBut, as the Supreme Court observed in Barnes v. Gorman, 536 U.S. 181, 189 n.3\\n\\n(2002), that does not mean that an analysis of the available “remedies, procedures,\\n\\nand rights” turns on that distinction. Justice Scalia (who wrote the Court’s opinion)\\n\\nand Justice Stevens (who concurred only in the judgment) disagreed over the\\n\\nrelevance of contract-law principles to the Court’s conclusion that punitive damages\\n\\nwere not available in Title II suits. See id. at 189–90 (Scalia, J.), 192–93 (Stevens,\\n\\nJ., concurring in the judgment). The Court had determined that because such\\n\\ndamages were not available in suits under Title VI or the Rehabilitation Act, which\\n\\nwere Spending Clause legislation, they were not available in Title II suits. Id. at\\n\\n189–90. Justice Scalia noted that the ADA is not Spending Clause legislation, but\\n\\nrejected the distinction because Congress had “unequivocally” selected remedies\\n\\nderived from Spending Clause legislation when it enacted the ADA.\\n\\n The ADA could not be clearer that the “remedies,\\n procedures, and rights . . . this subchapter provides” for\\n violations of § 202 are the same as the “remedies,\\n procedures, and rights set forth in” § 505(a)(2) of the\\n Rehabilitation Act, which is Spending Clause legislation.\\n Section 505(a)(2), in turn, explains that the “remedies,\\n procedures, and rights set forth in title VI . . . shall be\\n available” for violations of § 504 of the Rehabilitation\\n Act.\\n\\nId. at 189 n.3 (Scalia, J.) (emphasis in original) (citations omitted).\\n\\n In Barnes, while interpreting the remedial structure of Title II of the ADA, the\\n\\nSupreme Court did not consider the federal-funding distinction persuasive because\\n\\n\\n 41\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 42 of 66\\n\\n\\nCongress expressly adopted remedies from those Spending Clause statutes.\\n\\nCongress intended for those to be the available remedies for Title II because it said\\n\\nso.19 See Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992)\\n\\n(“[C]ourts must presume that a legislature says in a statute what it means and means\\n\\nin a statute what it says there.”). To determine the available remedies, we must take\\n\\nCongress at its word. This brings us to Florida’s arguments concerning who may\\n\\nfile suit under Title II.\\n\\n Florida asserts that because Congress did not name the Attorney General in\\n\\nTitle II, the Attorney General may not sue. It relies on Director, Office of Workers’\\n\\nComp. Programs, Dep’t of Labor v. Newport News Shipbuilding & Dry Dock Co.,\\n\\n514 U.S. 122, 129 (1995), for the proposition that if an agency is meant to have\\n\\nstanding, then Congress expressly says so. This is one of the key concepts from\\n\\nNewport News. The other is that, when making such determinations, courts examine\\n\\nthe nature, structure, and purpose of the relevant statutory scheme. We do not\\n\\nconclude that Newport News dictates the result Florida proposes.\\n\\n Newport News examined a single, self-contained statute, rather than a\\n\\ncomplex statutory scheme with two layers of statutory cross-reference. The\\n\\n\\n\\n\\n 19\\n Of course, if a public entity does not receive federal funding, then the United States may\\nnot terminate or withhold such funding. But the ADA prohibits discrimination by all public\\nentities, regardless of the source of funding. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1174\\n(11th Cir. 2003).\\n 42\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 43 of 66\\n\\n\\nSupreme Court considered whether the Director of the Office of Workers’\\n\\nCompensation Programs could, under the judicial review provision of the Longshore\\n\\nHarbor Workers’ Compensation Act (“LHWCA”), seek judicial review of a decision\\n\\nby the Benefits Review Board. 514 U.S. at 123.\\n\\n The relevant statute provided that “‘any person adversely affected or\\n\\naggrieved by’ the Board’s order” could appeal the decision in a United States Court\\n\\nof Appeals. Id. at 126 (quoting 33 U.S.C. § 921(c)). The Board had affirmed an\\n\\nadministrative law judge’s determination that a worker was only partially disabled.\\n\\nThe Director sought review in the Fourth Circuit, which independently concluded\\n\\nthat the Director could not seek judicial review because she was not a “person\\n\\nadversely affected or aggrieved” by the Board’s decision within the meaning of the\\n\\nLHWCA.20\\n\\n The Supreme Court affirmed. The Director was not a party to the proceedings\\n\\nbefore the administrative law judge, and, under the LHWCA, she could not appeal\\n\\nthe judge’s determinations to the Board. Thus, allowing her to challenge the Board’s\\n\\ndeterminations in a federal court of appeals would be quite odd. The key phrase in\\n\\nthe judicial review provision, “a person adversely affected or aggrieved,” is, the\\n\\n\\n\\n\\n 20\\n The worker did not seek judicial review, and upon inquiry by the Fourth Circuit,\\n“expressly declined to intervene on his own behalf,” although he did not oppose the Director’s\\nappeal. Director, Office of Workers’ Comp. Programs, Dep’t of Labor v. Newport News\\nShipbuilding & Dry Dock Co., 514 U.S. 122, 124–25 (1995).\\n 43\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 44 of 66\\n\\n\\nCourt explained, a “term of art” that statutes use to “designate those who have\\n\\nstanding to challenge or appeal an agency decision, within the agency or before the\\n\\ncourts.” Id. at 126. But nothing suggested that, “without benefit of specific\\n\\nauthorization to appeal, an agency, in its regulatory or policy-making capacity, is\\n\\n‘adversely affected’ or ‘aggrieved.’”21 Id. at 127. The Court explained that the\\n\\ngeneral judicial review provision of the Administrative Procedure Act does not\\n\\ninclude an agency as a person adversely affected or aggrieved, id. at 129, and “when\\n\\nan agency in its governmental capacity is meant to have standing, Congress says so.”\\n\\nIbid. (emphasis in original).\\n\\n The Court rejected the Director’s argument that she could seek judicial review\\n\\nbecause the Board’s decision impaired her ability to achieve the LHWCA’s purposes\\n\\nand perform administrative duties. Id. at 126. The Court observed that the Board’s\\n\\ndecision did not interfere with the Director’s duties as set forth by the LHWCA, and\\n\\nthat the purpose of the LHWCA was not to ensure adequate compensation, but rather\\n\\nto resolve disputes. Id. at 130–31. Even assuming that the LHWCA’s sole purpose\\n\\nwas to ensure compensation for workers, agencies “do not automatically have\\n\\nstanding to sue for actions that frustrate the purposes of their statutes[,]” and the\\n\\n\\n\\n\\n 21\\n Agencies may be “adversely affected or aggrieved” in some circumstances, such as when\\nthey are injured in their “nongovernmental capacity . . . as . . . member[s] of the market group that\\nthe statute was meant to protect.” Newport News, 514 U.S. at 128 (citing United States v. ICC,\\n337 U.S. 426, 430 (1949)).\\n 44\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 45 of 66\\n\\n\\nplain language of the statute did not show a “clear and distinctive responsibility for\\n\\nemployee compensation as to overcome” the obvious reading of the text—that the\\n\\n“person adversely affected or aggrieved” by the Board’s decision is one of the parties\\n\\nto the proceeding. Id. at 132.\\n\\n By contrast, here, Congress enacted a statute that drew upon two other statutes\\n\\nto create the remedies, rights, and procedures available for enforcement, with the\\n\\nfull knowledge that the other statutes—the Rehabilitation Act and the Civil Rights\\n\\nAct—were enforceable by federal agencies through funding termination or “any\\n\\nother means authorized by law.” See 42 U.S.C. § 12133. Then Congress told the\\n\\nAttorney General to make regulations (that we defer to) to implement Title II that\\n\\nwere to be consistent with a set of regulations that traced directly back to Title VI\\n\\nregulations. 42 U.S.C. § 12134(a)–(b). Congress was quite clear that Title V of the\\n\\nRehabilitation Act and its accompanying regulations were to be construed as the\\n\\nminimum standard for the ADA. 42 U.S.C. § 12201 (“Except as otherwise provided\\n\\nin this chapter, nothing in this chapter shall be construed to apply a lesser standard\\n\\nthan the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C.\\n\\n790 et seq.) or the regulations issued by Federal agencies pursuant to such title.”).\\n\\n By the time Congress enacted the ADA, it had established administrative\\n\\nenforcement structures in Title VI and the Rehabilitation Act that each followed the\\n\\nsame pattern. Various federal investigations under those statutes had culminated in\\n\\n\\n 45\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 46 of 66\\n\\n\\nthe Department of Justice filing suit in federal court to enforce these statutory\\n\\nprovisions. Congress knew that both Title VI and the Rehabilitation Act had been\\n\\nenforced through Department of Justice litigation, and when it enacted the ADA,\\n\\ncross-referencing to Spending Clause remedies—without the federal-funding\\n\\nhook—such remedies necessarily entailed federal enforcement actions, particularly\\n\\nwhen § 12133 ultimately cascades back to “any other means authorized by law,” a\\n\\nphrase that courts have interpreted to permit referral to the Department of Justice for\\n\\nfurther legal action. See Cannon, 441 U.S. at 710–11 (implying a private remedy in\\n\\npart because Congress considered it to be available at the time of enactment); Brown\\n\\nv. Gen. Svcs. Admin., 425 U.S. 820, 828 (1976) (“For the relevant inquiry is not\\n\\nwhether Congress correctly perceived the then state of the law, but rather what its\\n\\nperception of the state of the law was.”). The legislative, regulatory, and\\n\\nprecedential background of the statutes that Congress incorporated demonstrate that\\n\\nCongress intended to create a system of federal enforcement for Title II of the ADA.\\n\\nIndeed, one of the purposes of the ADA was to ensure that the Federal Government\\n\\n“play[ed] a central role in enforcing the standards established in this chapter on\\n\\nbehalf of individuals with disabilities.” 42 U.S.C. § 12101(b)(3).\\n\\n C. The Legislative History of Title II Supports the Attorney General’s\\n Authority to File Suit\\n\\n In considering the legislative history, we are mindful that courts need not\\n\\nexamine legislative history if the meaning of the statute is plain, but it may do so,\\n 46\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 47 of 66\\n\\n\\nparticularly if a party’s interpretation is based on a misreading or misapplication of\\n\\nlegislative history. See Harris v. Garner, 216 F.3d 970, 976–77 (11th Cir. 2000) (en\\n\\nbanc), cert. denied, 532 U.S. 1065 (2001). Here, both parties dispute the effect of\\n\\ncertain portions of the legislative history surrounding the enactment of the ADA.\\n\\n The United States cites two committee reports, one from the Senate\\n\\nCommittee on Labor and Human Resources, S. Rep. No. 101-116 (1989), and one\\n\\nfrom the House Committee on Education and Labor, H.R. Rep. No. 101-485 II\\n\\n(1990), reprinted in 1990 U.S.C.C.A.N. 303, which, it asserts, demonstrate that\\n\\nCongress intended that the Department of Justice should enforce Title II.\\n\\n Both reports note that Title II’s enforcement provision specifies that the\\n\\n“remedies, procedures, and rights” are those available in § 505 of the Rehabilitation\\n\\nAct. S. Rep. No. 101-116, at 57; H.R. Rep. No. 101-485 II, at 98, 1990 U.S.C.C.A.N.\\n\\nat 381. The Committee reports state (in virtually identical language) that\\n\\nadministrative enforcement of § 12133 should track federal enforcement practices\\n\\nunder § 504 of the Rehabilitation Act, and the Attorney General “should use section\\n\\n504 enforcement procedures and the Department’s coordination role under\\n\\nExecutive Order 12250 as models for regulation in this area.” H.R. Rep. No. 101-\\n\\n485 II, at 98, 1990 U.S.C.C.A.N. at 381; S. Rep. No. 101-116, at 57.\\n\\n The Committee envisions that the Department of\\n Justice will identify appropriate Federal agencies to\\n oversee compliance activities for State and local\\n governments. As with section 504, these Federal agencies,\\n 47\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 48 of 66\\n\\n\\n including the Department of Justice, will receive,\\n investigate, and where possible, resolve complaints of\\n discrimination. If a Federal agency is unable to resolve a\\n complaint by voluntary means, the Federal government\\n would use the enforcement sanctions of section 505 of the\\n Rehabilitation Act of 1973. Because the fund termination\\n procedures of section 505 are inapplicable to State and\\n local government entities that do not receive Federal\\n funds, the major enforcement sanction for the Federal\\n government will be referral of cases by these Federal\\n agencies to the Department of Justice.\\n The Department of Justice may then proceed to file\\n suits in Federal district court. As with section 504, there is\\n also a private right of action for persons with disabilities,\\n which includes the full panoply of remedies. Again,\\n consistent with section 504, it is not the Committee’s\\n intent that persons with disabilities need to exhaust\\n Federal administrative remedies before exercising their\\n private right of action.\\n\\nH.R. Rep. No. 101-485 II, at 98, 1990 U.S.C.C.A.N. at 381; S. Rep. No. 101-116, at\\n\\n57–58.22\\n\\n Florida emphasizes that these reports refer to an earlier version of the bill, and\\n\\ncites another, later report, from the Committee on the Judiciary H.R. Rep. No. 101-\\n\\n485 III, reprinted in 1990 U.S.C.C.A.N. 445, that does not discuss federal\\n\\nenforcement actions under Title II. In discussing Title II’s enforcement provision,\\n\\nthe report from the Committee on the Judiciary stated:\\n\\n\\n\\n\\n 22\\n Title II of the ADA and the Rehabilitation Act do not require a private party to exhaust\\nadministrative remedies before bringing suit. See Zimmerman v. Or. Dep’t of Justice, 170 F.3d\\n1169, 1178 (9th Cir. 1999).\\n 48\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 49 of 66\\n\\n\\n Section 205 incorporates the remedies, procedures\\n and rights set forth in Section 505 of the Rehabilitation Act\\n of 1973. As in [T]itle I, the Committee adopted an\\n amendment to delete the term “shall be available” in order\\n to clarify that Rehabilitation Act remedies are the only\\n remedies which [T]itle II provides for violations of [T]itle\\n II. The Rehabilitation Act provides a private right of\\n action, with a full panoply of remedies available, as well\\n as attorney’s fees.\\n\\nH.R. Rep. No. 101-485 III, at 52, 1990 U.S.C.C.A.N. at 475 (footnotes omitted).\\n\\n The difference between these Committee Reports is not, however, conclusive.\\n\\nFirst, the report from the Committee on the Judiciary emphasized that Title II\\n\\nextended the coverage of § 504 of the Rehabilitation Act, and that it intended for\\n\\nTitle II to “work in the same manner as Section 504.” Id. at 49–50, 1990\\n\\nU.S.C.C.A.N. at 472–73. Second, the reference to a “private right of action”\\n\\nincluded a footnote to Miener v. Missouri, 673 F.2d 969 (8th Cir. 1982), which\\n\\nconcluded that the Rehabilitation Act contained an implied private right of action\\n\\nand recognized the federal enforcement structure. Id. at 978. As we have discussed\\n\\nabove, there had been considerable litigation over whether the Rehabilitation Act\\n\\npermitted a private right of action. Thus, references to that private right equally\\n\\npermit the inference that Congress wanted to be clear that Title II did not just track\\n\\nthe administrative enforcement structure of the Rehabilitation Act and Title VI, but\\n\\nalso authorized a private right of action.\\n\\n\\n\\n\\n 49\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 50 of 66\\n\\n\\n This legislative history is not dispositive—indeed, we are wary of putting\\n\\nmuch, if any weight on various committee reports when the text of the bill was\\n\\nsubsequently amended. More significantly, other courts considering this question\\n\\nhave concluded that the Attorney General has the power to enforce Title II in federal\\n\\ncourt.23\\n\\n\\n\\n\\n 23\\n Florida, adopting the district court’s arguments, contends that the Civil Rights of\\nInstitutionalized Persons Act, 42 U.S.C. § 1997 et seq. (“CRIPA”), is an express mechanism to\\nprotect the rights of institutionalized persons. The district court concluded that “[r]ecognizing the\\nauthority the Department seeks in this case would, in effect, allow an end-run around CRIPA’s\\nstringent requirements.” C.V. v. Dudek, 209 F. Supp. 3d 1279, 1290 (S.D. Fla. 2016).\\n CRIPA requires that the Attorney General have reasonable cause to believe that “any State\\nor political subdivision of a State, official, employee, or agent thereof, or other person acting on\\nbehalf of a State or political subdivision of a State” is subjecting persons confined in an institution\\nto “egregious or flagrant conditions” that deprive them of rights, privileges or immunities secured\\nor protected by the Constitution or laws of the Untied States that causes them “grievous harm” and\\nis “pursuant to a pattern or practice” before filing suit. 42 U.S.C. § 1997a(a). But CRIPA is\\nirrelevant in this case. Institutions that are subject to CRIPA must be “owned, operated, or\\nmanaged by, or provide[] services on behalf of any State or political subdivision of a State,” 42\\nU.S.C. § 1997(1)(A), and include institutions that provide “skilled nursing, intermediate or long-\\nterm care, or custodial or residential care.” Id. (B)(v). Privately owned and operated facilities are\\nnot subject to CRIPA if either licensing or receipt of payments under Medicaid, Medicare, or\\nSocial Security, are the “sole nexus” between the facility and the State. Id. (2)(C). A review of\\nthe record seems to indicate that the nursing facilities at issue are private facilities that receive\\npayments from Florida through Medicaid. Further, the United States’ claims address more than\\njust practices within Florida’s institutions.\\n There is nothing to suggest that CRIPA was intended to be the only means of enforcing the\\nrights of institutionalized persons. Congress enacted CRIPA some ten years before the ADA.\\nPresumably Congress was aware that CRIPA existed, and yet it chose to enact the ADA, which\\nreaches far more broadly, and provides protection against unnecessary institutionalization. See 42\\nU.S.C. § 12101; Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). Obviously Congress can\\ncreate different types of enforcement schemes for different types of statutory or constitutional\\nviolations.\\n\\n\\n\\n 50\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 51 of 66\\n\\n\\n\\n\\n D. The Department of Justice Has Filed Suit to Enforce Title II\\n\\n We are not the first court to pass upon this issue, and a review of other cases\\n\\nthat have considered whether Title II permits the Attorney General to file suit\\n\\ndemonstrates that the district court’s decision is an outlier.\\n\\n This Circuit has generally acknowledged the scope of potential federal\\n\\nenforcement under Title II, in Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1175\\n\\n(11th Cir. 2003). In that case, we concluded that individuals could be liable under\\n\\nthe ADA’s anti-retaliation provision where the retaliation took place in response to\\n\\nopposition against discrimination prohibited by Title II. Id. at 1163. To do so, we\\n\\nexplained, would not be inconsistent with the “allowed scope of government\\n\\nenforcement action” because the ADA is not Spending Clause legislation and\\n\\nfunding-termination procedures are not applicable to public entities that do not\\n\\nreceive federal funding. Id. at 1175. We concluded that the ADA and its\\n\\naccompanying regulations did not “indicate” that enforcement by referral to the\\n\\nDepartment of Justice or the Attorney General for appropriate action could not be\\n\\ntaken against individuals. Ibid.\\n\\n In United States v. City & Cty. of Denver, 927 F. Supp. 1396, 1399 (D. Colo.\\n\\n1996), the district court considered whether the Attorney General had authority to\\n\\nfile suit under Title II of the ADA. After describing the statutory cascade from\\n\\n\\n 51\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 52 of 66\\n\\n\\n§ 12133, to § 504 of the Rehabilitation Act, to § 602 of Title VI, the district court\\n\\nobserved that “[c]ourts have interpreted the words ‘by any other means authorized\\n\\nby law’ to mean that a funding agency, after finding a violation and determining that\\n\\nvoluntary compliance is not forthcoming, could refer a matter to the Department of\\n\\nJustice to enforce the statute’s nondiscrimination requirements in court.” Id. at 1400\\n\\n(citing National Black Police Ass’n, 712 F.2d at 575 & n.33; Marion Cty., 625 F.2d\\n\\nat 612 & n.12). The United States’s regulations that implemented Title II were\\n\\nconsistent with the administrative procedures under Title VI and the Rehabilitation\\n\\nAct. Ibid. The district court concluded that, by investigating, attempting to negotiate\\n\\nwith Denver, and following Denver’s refusal to enter into an agreement, the United\\n\\nStates complied with the procedural requirements for Title II of the ADA (which\\n\\nwere consistent with § 602’s requirement that no action be taken until the department\\n\\nhad advised the noncompliant party of its failure, and attempted to secure\\n\\ncompliance through voluntary means). Ibid.\\n\\n In Smith v. City of Philadelphia, 345 F. Supp. 2d 482, 484–85 (E.D. Pa. 2004),\\n\\nSmith filed suit alleging that, upon learning that he had AIDS, paramedics refused\\n\\nto assist him, in violation of Title II of the ADA. The United States intervened. Id.\\n\\nat 484. The district court ruled that Smith’s claims were time barred but concluded\\n\\nthat the United States could proceed with its enforcement action because it had a\\n\\nseparate and independent base of jurisdiction under Title II and § 504 of the\\n\\n\\n 52\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 53 of 66\\n\\n\\nRehabilitation Act. Id. at 489. The district court’s reasoning tracked the reasoning\\n\\nused in City & Cty. of Denver. Because the Title II’s enforcement provision cascades\\n\\nto § 602, which authorizes the Attorney General to enforce compliance with Title VI\\n\\nby filing suit in federal court, “the Attorney General may also bring suit to enforce\\n\\nother statutes which adhere to the enforcement scheme set forth in Title VI.” Id. at\\n\\n490.\\n\\n Other courts have considered this matter and reached the same conclusion\\n\\nfollowing the same analysis. See United States v. Harris Cty., No. 4:16-cv-2331,\\n\\n2017 WL 7692396, at *1 (S.D. Tex. Apr. 26, 2017); United States v. Virginia, No.\\n\\n3:12-cv-59-JAG, 2012 WL 13034148, at *2–3 (E.D. Va. June 5, 2012); United\\n\\nStates v. Arkansas, No. 4:10-cv-00327, 2011 WL 251107, at *3, *8 (E.D. Ark. Jan.\\n\\n24, 2011) (concluding that the Department of Justice had authority to initiate a civil\\n\\naction to enforce Title II but dismissing the complaint without prejudice because the\\n\\nDepartment had not sufficiently alleged that it had complied with statutory\\n\\nprerequisites).\\n\\n Other cases the United States has filed to enforce Title II have not considered\\n\\nthe question of standing but were litigated without jurisdictional challenge in the\\n\\nfederal courts. See, e.g., United States v. Gates-Chili Cent. Sch. Dist., 198 F. Supp.\\n\\n3d 228 (W.D.N.Y. 2016) (alleging ADA violations from a school’s rule regarding a\\n\\nstudent’s service dog); United States v. City of Balt., 845 F. Supp. 2d 640, 642 n.1\\n\\n\\n 53\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 54 of 66\\n\\n\\n(D. Md. 2012) (DOJ filed suit alleging that the City of Baltimore Zoning Code\\n\\ndiscriminates against individuals receiving treatment in residential substance abuse\\n\\nprovisions in violation of Title II of the ADA); United States v. N. Ill. Special\\n\\nRecreation Ass’n, No. 12-c-7613, 2013 WL 1499034 (N.D. Ill. Apr. 11, 2013)\\n\\n(United States filed suit alleging discrimination against individuals with epilepsy in\\n\\nviolation of Title II).\\n\\n When confronted with this issue, courts have routinely concluded that\\n\\nCongress’s decision to utilize the same enforcement mechanism for Title II as the\\n\\nRehabilitation Act, and therefore Title VI, demonstrates that the Attorney General\\n\\nhas the authority to act “by any other means authorized by law” to enforce Title II,\\n\\nincluding initiating a civil action. We agree with this reasoning.\\n\\n E. Federalism Principles Do Not Alter Our Conclusion\\n\\n Florida contends that principles of federalism dictate a different result and\\n\\ncomplains that “the federal government has haled a State into court over questions\\n\\nthat go to the heart of its sovereignty: the weighing of competing healthcare\\n\\npolicies.” Relying on Gregory v. Ashcroft, 501 U.S. 452 (1991), Florida asserts that\\n\\nCongress did not make a clear statement in Title II that it intended to “empower the\\n\\nfederal executive to sue the States[.]” Florida argues that we should not presume\\n\\nthat Congress intended to authorize such litigation without a clear statement because\\n\\n\\n\\n\\n 54\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 55 of 66\\n\\n\\nfederal enforcement actions impose “considerable federalism costs,” and such\\n\\nlitigation is “coercive.”\\n\\n In Gregory, the Supreme Court considered whether a mandatory age-based\\n\\nretirement provision for judges in the Missouri Constitution violated the Age\\n\\nDiscrimination in Employment Act (“ADEA”). 501 U.S. at 455. The Court\\n\\nrecognized that, under the Supremacy Clause, Congress may legislate in areas\\n\\nusually controlled by states provided that it is within its constitutional authority. Id.\\n\\nat 460. But, the Court pointed out, the structure of a State’s government and the\\n\\nqualifications it establishes for exercising government authority are fundamental\\n\\nquestions of sovereignty, particularly when it comes to identifying constitutional\\n\\nofficers. Ibid. For Congress to interfere with those issues would seriously disrupt\\n\\nthe “usual constitutional balance of federal and state powers.” Ibid. Therefore, the\\n\\nCourt would not read the ADEA to reach state judges unless Congress expressly\\n\\nindicated that it should. Because the ADEA identified an exception for “appointees\\n\\non the policymaking level,” the Court decided that was “sufficiently broad” to permit\\n\\na conclusion that the ADEA did not reach state judges. Id. at 467. Gregory instructs\\n\\nus that, to alter the usual balance between state and federal interests, Congress must\\n\\nspeak clearly.\\n\\n Congress has done so. Twenty years ago, in Pennsylvania Dep’t of Corr. v.\\n\\nYeskey, 524 U.S. 206, 208 (1998), the Supreme Court considered whether Title II\\n\\n\\n 55\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 56 of 66\\n\\n\\napplied to state prisons. “Assuming, without deciding, that the plain-statement rule”\\n\\nof Gregory controlled the application of the ADA to state prisons, the Court\\n\\nconcluded that, unlike in Gregory, the language of the ADA “plainly cover[ed] state\\n\\ninstitutions without any exception that could cast the coverage of prisons into doubt.”\\n\\nId. at 209–10 (citing 42 U.S.C. § 12131(1)(B)). 24\\n\\n Our analysis is similarly straightforward. Even assuming the “plain statement\\n\\nrule” applies, Congress expressly intended for Title II to reach states. Title II of the\\n\\nADA defines “public entities” as “any State or local government,” or “any\\n\\ndepartment, agency, special purpose district, or other instrumentality of a State or\\n\\nStates or local government . . . .” 42 U.S.C. § 12131(1)(A)–(B). Florida has been a\\n\\nstate since 1845. Thus, it “fall[s] squarely within the statutory definition of ‘public\\n\\nentity[]’ . . . .” Yeskey, 524 U.S. at 210.\\n\\n Florida may have valid complaints about this lawsuit, but whether it is\\n\\namenable to suit by the United States is not one of them. The Supreme Court has\\n\\nconsistently recognized that, “[i]n ratifying the Constitution, the States consented to\\n\\nsuits brought by other states or by the Federal Government.” Alden v. Maine, 527\\n\\n\\n\\n\\n 24\\n The Supreme Court declined to consider whether the application of the ADA to state\\nprisons was a constitutional exercise of Congress’s power under either the Commerce Clause or\\n§ 5 of the Fourteenth Amendment because the courts below had not considered the issue.\\nPennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 212–13 (1998). We similarly do not need\\nto reach the question of whether application of the ADA to a state is a constitutional exercise of\\nCongressional power because it is not before us.\\n 56\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 57 of 66\\n\\n\\nU.S. 706, 755 (1999). States do not retain sovereign immunity from suits brought\\n\\nby the federal government. See West Virginia v. United States, 479 U.S. 305, 311\\n\\nn.4 (1987); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 71 n.14 (1996);\\n\\nPrincipality of Monaco v. Mississippi, 292 U.S. 313, 329 (1934); United States v.\\n\\nMiss. Dep’t of Pub. Safety, 321 F.3d 495, 498–99 (5th Cir. 2003) (concluding that\\n\\nthe Eleventh Amendment does not bar the United States from suing a state to enforce\\n\\nTitle I of the ADA).\\n\\n To be sure, there are “federalism costs inherent in referring state decisions\\n\\nregarding the administration of treatment programs and the allocation of resources\\n\\nto the reviewing authority of the federal courts.” Olmstead, 527 U.S. at 610\\n\\n(Kennedy, J., concurring). But the Supreme Court struck that balance in Olmstead,\\n\\nholding that the requirement that States provide community-based treatment must\\n\\nbe tempered by: (1) a determination by the State’s treatment professionals that such\\n\\nplacement is appropriate; (2) the individuals to receive such treatment do not oppose\\n\\nit; and (3) the placement can be accommodated, considering the state’s resources\\n\\nand the needs of other individuals who receive such treatment. Id. at 607. The same\\n\\nconsiderations in Olmstead apply to the merits of this case. Florida’s federalism\\n\\nconcerns do not dictate a different result.\\n\\n\\n\\n\\n 57\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 58 of 66\\n\\n\\n CONCLUSION\\n\\n When Congress chose to designate the “remedies, procedures, and rights” in\\n\\n§ 505 of the Rehabilitation Act, which in turn adopted Title VI, as the enforcement\\n\\nprovision for Title II of the ADA, Congress created a system of federal enforcement.\\n\\nThe express statutory language in Title II adopts federal statutes that use a remedial\\n\\nstructure based on investigation of complaints, compliance reviews, negotiation to\\n\\nachieve voluntary compliance, and ultimately enforcement through “any other\\n\\nmeans authorized by law” in the event of noncompliance. In the other referenced\\n\\nstatutes, the Attorney General may sue. The same is true here.\\n\\n For the foregoing reasons, we REVERSE the district court’s judgment and\\n\\nREMAND for proceedings consistent with this opinion.\\n\\n\\n\\n\\n 58\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 59 of 66\"}, {\"author\": \"BRANCH, Circuit Judge, dissenting\", \"type\": \"dissent\", \"text\": \"BRANCH, Circuit Judge, dissenting:\\n\\n Because the United States is not a “person alleging discrimination” under\\n\\nTitle II of the Americans with Disabilities Act (“ADA”), Title II does not provide\\n\\nthe Attorney General of the United States with a cause of action to enforce its\\n\\npriorities against the State of Florida. Accordingly, I respectfully dissent.\\n\\n The relevant text of Title II states:\\n\\n The remedies, procedures, and rights set forth in section 794a of Title\\n 29 shall be the remedies, procedures, and rights this subchapter\\n provides to any person alleging discrimination on the basis of\\n disability in violation of section 12132 of this title.\\n\\n42 U.S.C. § 12133 (emphasis added). The language of this provision is\\n\\nunambiguous. Title II provides enforcement rights “to any person alleging\\n\\ndiscrimination.” Thus, the question is whether the Attorney General is a “person\\n\\nalleging discrimination” under Title II.\\n\\n To answer that question, we apply “a ‘longstanding interpretive presumption\\n\\nthat ‘person’ does not include the sovereign,’ and thus excludes a federal agency.”\\n\\nReturn Mail, Inc. v. USPS, 587 U.S. ____, No. 17-1594, 2019 WL 2412904, at *5\\n\\n(June 10, 2019) (quoting Vermont Agency of Natural Resources v. US ex rel.\\n\\nStevens, 529 U. S. 765, 780–781 (2000)). In Return Mail, the Supreme Court\\n\\nconsidered whether the United States Postal Service (“USPS”), a federal agency,\\n\\nwas a “person” eligible to seek patent review under the America Invents Act\\n\\n 59\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 60 of 66\\n\\n\\n(“AIA”). USPS had petitioned for review of Return Mail’s patent under two\\n\\nsections of the AIA that allow for post-issuance patent review. Id. at *4–5.\\n\\nHowever, the language of the AIA limited post-issuance review proceedings to “a\\n\\nperson who is not the owner of a patent,” id. (citing 35 U.S.C. §§ 311(a), 321(a)),\\n\\nor when “the person or the person’s real party in interest or privy has been sued for\\n\\ninfringement.” Id. (citing AIA § 18(a)(1)(B), 125 Stat. 330). Thus, the direct\\n\\nquestion presented to the Supreme Court in Return Mail was: “whether a federal\\n\\nagency is a ‘person’ capable of petitioning for post-issuance review under the\\n\\nAIA.” Id. In concluding that the Government presumptively is not a “person” for\\n\\npurposes of federal statutes, the Supreme Court explained:\\n\\n This presumption reflects “common usage.” United States v. Mine\\n Workers, 330 U.S. 258, 275 (1947). It is also an express directive\\n from Congress: The Dictionary Act has since 1947 provided the\\n definition of “person” that courts use “[i]n determining the meaning of\\n any Act of Congress, unless the context indicates otherwise.” 1 U.S.C.\\n § 1; see Rowland v. California Men’s Colony, Unit II Men’s Advisory\\n Council, 506 U.S. 194, 199–200 (1993). The Act provides that the\\n word “person . . . include[s] corporations, companies, associations,\\n firms, partnerships, societies, and joint stock companies, as well as\\n individuals.” § 1. Notably absent from the list of “person[s]” is the\\n Federal Government. See Mine Workers, 330 U.S. at 275 (reasoning\\n that Congress’ express inclusion of partnerships and corporations in §\\n 1 implies that Congress did not intend to include the Government).\\n Thus, although the presumption is not a “hard and fast rule of\\n exclusion,” United States v. Cooper Corp., 312 U.S. 600, 604–605\\n (1941), “it may be disregarded only upon some affirmative showing\\n of statutory intent to the contrary.” Stevens, 529 U.S. at 781.\\n\\nId. at *6.\\n\\n\\n 60\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 61 of 66\\n\\n\\n Given Return Mail’s clear explanation of the presumption in favor of\\n\\nexcluding the Federal Government from the definition of “person,” I approach the\\n\\nanalysis of Title II the same way. As such, I begin with the presumption that\\n\\n“person alleging discrimination,” 42 U.S.C. § 12133, does not include the United\\n\\nStates. See Return Mail, 2019 WL 2412904, at *5. In order to overcome “the\\n\\npresumption that a statutory reference to a ‘person’ does not include the\\n\\nGovernment,” there must be “some indication in the text or context of the statute\\n\\nthat affirmatively shows Congress intended to include the Government” in its\\n\\ndefinition of “person.” Id. Nothing in the text of Title II overcomes this\\n\\npresumption. But Return Mail states that context matters, too. And so I next\\n\\nexamine the enforcement language contained in the other Titles of the ADA. 1\\n\\n In Title I of the ADA, the enforcement language provides as follows:\\n\\n The powers, remedies, and procedures set forth in . . . this title shall\\n be the powers, remedies, and procedures this subchapter provides to\\n the Commission, to the Attorney General, or to any person\\n alleging discrimination on the basis of disability in violation of any\\n provision of this chapter, or regulations promulgated under section\\n 12116 of this title, concerning employment.\\n\\n\\n\\n\\n 1\\n The ADA contains three primary subchapters, each referred to as a separate “Title.”\\nEach Title “forbids discrimination against persons with disabilities in three major areas of public\\nlife: employment, which is covered by Title I of the statute; public services, programs, and\\nactivities, which are the subject of Title II; and public accommodations, which are covered by\\nTitle III.” Tennessee v. Lane, 541 U.S. 509, 516–17 (2004).\\n 61\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 62 of 66\\n\\n\\n42 U.S.C. § 12117(a) (emphasis added). The text of Title I thus explicitly conveys\\n\\nthe “powers, remedies, and procedures . . . to the Attorney General.” Id. Title II\\n\\nechoes the “any person alleging discrimination” language contained in Title I, but\\n\\nthe reference to “the Attorney General” is conspicuously missing from Title II.\\n\\nCompare 42 U.S.C. § 12133, with 42 U.S.C. § 12117(a).\\n\\n Title III of the ADA also contains language bestowing enforcement\\n\\nauthority on the Attorney General:\\n\\n If the Attorney General has reasonable cause to believe that—(i) any\\n person or group of persons is engaged in a pattern or practice of\\n discrimination under this subchapter; or (ii) any person or group of\\n persons has been discriminated against under this subchapter and such\\n discrimination raises an issue of general public importance, the\\n Attorney General may commence a civil action in any appropriate\\n United States district court.\\n\\n42 U.S.C. § 12188(b)(B) (emphasis added). The text of Title III of the ADA is\\n\\neven more explicit than the text of Title I and clearly provides the Attorney\\n\\nGeneral with the authority to bring a civil suit in federal court. Title II, by contrast,\\n\\nis entirely devoid of any reference to “the Attorney General” or the power to\\n\\n“commence a civil action.” Compare 42 U.S.C. § 12133 with 42 U.S.C.\\n\\n§ 12188(b)(B).\\n\\n The difference in language across the ADA’s three titles is noteworthy. It is\\n\\nwell settled that, “where Congress includes particular language in one section of a\\n\\nstatute but omits it in another section of the same Act, it is generally presumed that\\n\\n\\n 62\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 63 of 66\\n\\n\\nCongress acts intentionally and purposely in the disparate inclusion or exclusion.”\\n\\nRussello v. United States, 464 U.S. 16, 23 (1983) (quoting United States v. Wong\\n\\nKim Bo, 472 F.2d 720, 722 (5th Cir. 1972)). If Congress had intended to grant a\\n\\ncivil cause of action to the Attorney General in Title II, “it presumably would have\\n\\ndone so expressly as it did in” Titles I and III. See Russello, 464 U.S. at 23.\\n\\n Yet the majority essentially reads Title III’s language (that “the Attorney\\n\\nGeneral may commence a civil action in any appropriate United States district\\n\\ncourt”) into Title II. Although the majority readily admits that, “at first glance,\\n\\nTitle II’s enforcement provision is not as specific as those in Titles I and III,” it\\n\\nfinds these differences inconsequential. The majority reasons that the differences\\n\\nbetween Title II and the other subchapters of the ADA “should not dictate a\\n\\nconclusion that, absent greater specificity, we should simply assume that a single\\n\\nword in § 12133 ends all inquiry.” As discussed above, the inquiry does, in fact,\\n\\nturn on a single word. Accordingly, it is clear that the Attorney General is not a\\n\\n“person alleging discrimination” under Title II.\\n\\n Notably, however, the United States does not argue that the Attorney\\n\\nGeneral is a “person alleging discrimination.” The United States instead argues\\n\\nthat “Title II provides to ‘persons’ alleging discrimination the ‘remedies,\\n\\nprocedures, and rights’—including the prospect of Attorney General\\n\\nenforcement—that are provided to persons under the Rehabilitation Act and Title\\n\\n\\n 63\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 64 of 66\\n\\n\\nVI.” The majority agrees with the United States: “Focusing solely on the word\\n\\n‘person’ and the difference in the language of enforcement provisions within the\\n\\nADA ignores” the presumption that “Congress legislated in light of existing\\n\\nremedial structures.” But “[f]ocusing solely on the word ‘person’” is precisely\\n\\nwhere this case should begin and end. Because the Attorney General of the United\\n\\nStates—on behalf of the United States itself and not on behalf of any individuals\\n\\nserved by the State of Florida—filed suit in this case, it is the United States that\\n\\nmust have a cause of action to enforce Title II. And that determination necessarily\\n\\ndepends on whether the Attorney General is a “person alleging discrimination”\\n\\nunder the text of Title II. Because he is not such a person, the Attorney General\\n\\nhas none of the “rights, procedures, and remedies” available under the\\n\\nRehabilitation Act and Title VI. Accordingly, in this case, it is legally irrelevant\\n\\nwhat those “rights, procedures, and remedies” are because he simply does not\\n\\npossess those rights with respect to Title II. I do not agree that the multitude of\\n\\ncross-references to other federal regulatory schemes somehow provides a cause of\\n\\naction that does not otherwise exist in the text of Title II.\\n\\n The Attorney General also insists that “a holding that the Attorney General\\n\\ncannot continue to bring lawsuits to enforce Title II would seriously undermine\\n\\nfederal enforcement of the ADA against public entities.” But we cannot expand\\n\\nthe definition of “person” just because such an interpretation would “further the\\n\\n\\n 64\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 65 of 66\\n\\n\\npurpose of the” statute. Return Mail, 2019 WL 2412904, at *10 n.11. “Statutes\\n\\nrarely embrace every possible measure that would further their general aims, and,\\n\\nabsent other contextual indicators of Congress’ intent to include the Government in\\n\\na statutory provision referring to a ‘person,’ the mere furtherance of the statute’s\\n\\nbroad purpose does not overcome the presumption in this case.” Id. See Cooper,\\n\\n312 U.S. at 605 (“[I]t is not our function to engraft on a statute additions which we\\n\\nthink the legislature logically might or should have made”). And Title II remains\\n\\nenforceable—even if the Attorney General does not have enforcement authority—\\n\\nbecause, as the Attorney General acknowledges, a “person alleging discrimination”\\n\\nmay still enforce Title II through a private right of action.\\n\\n Both the United States and the majority make much of the fact that “one of\\n\\nthe purposes of the ADA was to ensure that the Federal Government ‘play[ed] a\\n\\ncentral role in enforcing the standards established in this chapter on behalf of\\n\\nindividuals with disabilities.’” But, even if we find—as I do—that Title II does not\\n\\nallow the Attorney General to bring suit, the federal government will continue to\\n\\n“play a central role in enforcing the standards established in [the ADA] on behalf\\n\\nof individuals with disabilities.” 42 U.S.C. § 12101(b)(3). Title I and Title III of\\n\\nthe ADA clearly and explicitly confer enforcement authority on the Attorney\\n\\nGeneral. See 42 U.S.C. §§ 12117(a), 12188(b)(B). Accordingly, a holding that the\\n\\nAttorney General cannot sue the States to enforce Title II does not affect, in any\\n\\n\\n 65\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 66 of 66\\n\\n\\nway, the Attorney General’s ability to enforce the other Titles of the ADA. Thus,\\n\\nthe ADA’s broad statutory purpose rationally coexists with the holding that the\\n\\nAttorney General cannot file federal lawsuits to enforce Title II.\\n\\n Because the text of Title II is determinative, and because that text does not\\n\\nprovide the Attorney General with a cause of action to enforce Title II against the\\n\\nState of Florida, I would affirm the order of the district court. I respectfully\\n\\ndissent.\\n\\n\\n\\n\\n 66\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4438846/\", \"author_raw\": \"BRANCH, Circuit Judge, dissenting\"}]}"},"judge1":{"kind":"string","value":"JILL PRYOR"},"judge2":{"kind":"string","value":"BRANCH"},"judge3":{"kind":"string","value":"BOGGS"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JILL PRYOR\": \", Circuit\", \"BRANCH\": \", Circuit\", \"BOGGS\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":3,"string":"3"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":2,"string":"2"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4661593/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: United States v. Secretary Florida Agency for Health Care Administration\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-09-17\nOpinion type: majority\nHas dissenting opinion: Yes\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-13595 Date Filed: 09/17/2019 Page: 1 of 66\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-13595\n ________________________\n\n D.C. Docket No. 0:12-cv-60460-WJZ\n\nUNITED STATES OF AMERICA,\n Plaintiff-Appellants,\n versus\n\nSTATE OF FLORIDA,\n Defendant-Appellees.\n ________________________\n\n Appeal from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (September 17, 2019)\n\nBefore JILL PRYOR, BRANCH, and BOGGS,∗ Circuit Judges.\n\n Table of Contents\nANALYSIS ................................................................................................................5\nI. An Overview of Title II of the ADA ......................................................................5\nII. The Remedial Structure of Title VI of the Civil Rights Act ...............................12\n A. Title VI Enforcement Regulations Contemplate Department of Justice\n Enforcement Suits ................................................................................................14\n\n\n\n ∗\n Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by\ndesignation.\n\n Case: 17-13595 Date Filed: 09/17/2019 Page: 2 of 66\n\n\n B. Enforcing Title VI: Any Other Means Authorized By Law ...........................17\nIII. Section 505 of the Rehabilitation Act ................................................................21\n A. Rehabilitation Act Enforcement Regulations Tracked Title VI Regulations .22\n B. Department of Justice Enforcement of the Rehabilitation Act .......................27\nIV. Enforcement of Title II of the ADA ..................................................................32\n A. Title II Enforcement Regulations Follow Regulations Promulgated Under the\n Rehabilitation Act and Title VI............................................................................33\n B. Title II of the ADA Permits Department of Justice Enforcement ..................39\n C. The Legislative History of Title II Supports the Attorney General’s Authority\n to File Suit ............................................................................................................46\n D. The Department of Justice Has Filed Suit to Enforce Title II ........................51\n E. Federalism Principles Do Not Alter Our Conclusion......................................54\nCONCLUSION ........................................................................................................58\n\n\n\nBOGGS, Circuit Judge:\n\n In September 2012, after completing a six-month investigation, the\n\nDepartment of Justice issued a Letter of Findings notifying Florida that it was failing\n\nto meet its obligations under Title II of the Americans With Disabilities Act of 1990\n\n(“ADA”) and its implementing regulations, by “unnecessarily institutionalizing\n\nhundreds of children with disabilities in nursing facilities.” The Department of\n\nJustice also asserted that Florida’s Medicaid policies and practices placed other\n\n\n\n\n 2\n\n Case: 17-13595 Date Filed: 09/17/2019 Page: 3 of 66\n\n\nchildren who have “medically complex” 1 conditions, or who are “medically\n\nfragile,” 2 at risk of unnecessary institutionalization.\n\n The Department of Justice negotiated with Florida to attempt to resolve the\n\nviolations identified in the Letter of Findings. After concluding that it could not\n\nobtain voluntary compliance, the Department of Justice filed suit in the Southern\n\nDistrict of Florida in July 2013, seeking declaratory and injunctive relief under Title\n\nII of the ADA and 28 C.F.R. § 35.130(d).\n\n In December 2013, pursuant to Fed. R. Civ. P. 42(a), the district court\n\nconsolidated the Department of Justice’s suit with a previously-filed class-action\n\ncomplaint from a group of children who similarly alleged that Florida’s policies\n\n\n\n\n 1\n The Letter of Findings relied on Florida’s then-operative definition of “medically\ncomplex.” The term describes “a person [who] has chronic debilitating diseases or conditions of\none (1) or more physiological or organ systems that generally make the person dependent upon\ntwenty-four (24) hour-per-day medical, nursing, or health supervision or intervention.” Fla.\nAdmin. Code R. 59G-1.010(164) (2012). Florida has since amended its Administrative Code, and\nthis definition no longer appears. See Fla. Admin. Code R. 59G-1.010.\n 2\n At the time the Letter of Findings was issued, Florida defined “medically fragile” as a\nperson who is:\n\n medically complex and whose medical condition is of such a nature\n that he is technologically dependent, requiring medical apparatus or\n procedures to sustain life, e.g., requires total parenteral nutrition\n (TPN), is ventilator dependent, or is dependent on a heightened level\n of medical supervision to sustain life, and without such services is\n likely to expire without warning.\n\nFla. Admin. Code R. 59G-1.010(165) (2012). This definition no longer appears in Florida’s\nAdministrative Code. See Fla. Admin. Code R. 59G-1.010.\n 3\n\n Case: 17-13595 Date Filed: 09/17/2019 Page: 4 of 66\n\n\ncaused, or put them at risk of, unnecessary institutionalization and unlawful\n\nsegregation on the basis of disability. See A.R. v. Sec’y Fla. Agency for Health Care\n\nAdmin., 769 F. App’x 718 (11th Cir. 2019).\n\n Shortly before the consolidation, Florida filed a Motion for Judgment on the\n\nPleadings, asserting that Title II of the ADA did not authorize the Attorney General\n\nto file suit. The district court denied Florida’s motion, concluding that the\n\nDepartment of Justice had reasonably interpreted Title II and had the authority to\n\nfile suit to enforce Title II. See A.R. v. Dudek, 31 F. Supp. 3d 1363, 1367 (S.D. Fla.\n\n2014).\n\n In 2016, the district court sua sponte revisited the issue3 and dismissed the\n\nDepartment of Justice’s case because it concluded that the Attorney General lacked\n\nstanding to sue under Title II of the ADA. See C.V. v. Dudek, 209 F. Supp. 3d 1279,\n\n1282 (S.D. Fla. 2016). After further litigation, the district court dismissed the\n\nchildren’s case. This appeal followed.\n\n\n\n\n 3\n There do not appear to be any significant factual or legal changes between the 2014\ndecision and the 2016 decision. The consolidated cases were reassigned in 2014, shortly after the\ndistrict court decided Florida’s Motion for Judgment on the Pleadings. In 2016, the district court\njustified its departure from the 2014 decision because it concluded that the 2014 decision\nerroneously applied Chevron U.S.A. Inc. v. Nat. Res. Defense Council, Inc., 467 U.S. 837 (1984),\nand improperly deferred to the Department of Justice’s interpretation of the statute. See C.V. v.\nDudek, 209 F. Supp. 3d 1279, 1291 n.11 (S.D. Fla. 2016).\n 4\n\n Case: 17-13595 Date Filed: 09/17/2019 Page: 5 of 66\n\n\n ANALYSIS\n\n This case requires us to determine whether the Attorney General has a cause\n\nof action to enforce Title II of the ADA. This is a purely legal question, requiring\n\nstatutory interpretation. Therefore, the proper standard of review is de novo.\n\nStansell v. Revolutionary Armed Forces of Colombia, 704 F.3d 910, 914 (11th Cir.\n\n2014).\n\n I. An Overview of Title II of the ADA\n\n The ADA was intended to “provide a clear and comprehensive national\n\nmandate for the elimination of discrimination against individuals with disabilities,”\n\nand establish strong, enforceable standards to achieve that goal. 42 U.S.C.\n\n§ 12101(b)(1)–(2). Congress envisioned that, through the ADA, the Federal\n\nGovernment would take “a central role in enforcing the standards established in this\n\nchapter on behalf of individuals with disabilities,” and invoked “the sweep of\n\ncongressional authority, including the power to enforce the [F]ourteenth\n\n[A]mendment and to regulate commerce” to “address the major areas of\n\ndiscrimination faced day-to-day by people with disabilities.” Id. (b)(3)–(4). See\n\nalso United States v. Georgia, 546 U.S. 151, 154 (2006).\n\n Part A of Title II, 42 U.S.C. §§ 12131–12134, addresses public services\n\nprovided by public entities. A “public entity” means “any State or local\n\ngovernment,” or “any department, agency, special purpose district, or other\n\n\n 5\n\n Case: 17-13595 Date Filed: 09/17/2019 Page: 6 of 66\n\n\ninstrumentality of a State or States or local government . . . .” 42 U.S.C.\n\n§ 12131(1)(A)–(B). Title II prohibits discrimination based on disability, specifically,\n\n“[s]ubject to the provisions of this subchapter, no qualified individual with a\n\ndisability shall, by reason of such disability, be excluded from participation in or be\n\ndenied the benefits of the services, programs, or activities of a public entity, or be\n\nsubjected to discrimination by any such entity.” 42 U.S.C. § 12132. The term\n\n“qualified individual with a disability” means:\n\n an individual with a disability who, with or without\n reasonable modifications to rules, policies, or practices,\n the removal of architectural, communication, or\n transportation barriers, or the provision of auxiliary aids\n and services, meets the essential eligibility requirements\n for the receipt of services or the participation in programs\n or activities provided by a public entity.\n\n42 U.S.C. § 12131(2).\n\n Title II’s enforcement provision states that “[t]he remedies, procedures, and\n\nrights set forth in section 794a of Title 29 shall be the remedies, procedures, and\n\nrights this subchapter provides to any person alleging discrimination on the basis of\n\ndisability in violation of section 12132 of this title.” 42 U.S.C. § 12133. Congress\n\ndirected the Attorney General to “promulgate regulations in an accessible format\n\nthat implement [Title II].” 42 U.S.C. § 12134(a). Such regulations, with the\n\nexception of specifically-identified terms,\n\n shall be consistent with this chapter and with the\n coordination regulations under part 41 of title 28, Code of\n 6\n\n Case: 17-13595 Date Filed: 09/17/2019 Page: 7 of 66\n\n\n Federal Regulations (as promulgated by the Department of\n Health, Education, and Welfare on January 13, 1978),\n applicable to recipients of Federal financial assistance\n under section 794 of Title 29.\n\nId. (b).\n\n It is undisputed that Title II permits a private cause of action for injunctive\n\nrelief or money damages. Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743, 750 (2017).\n\nWe must determine whether Title II’s enforcement scheme, 42 U.S.C. § 12133,\n\npermits the Attorney General to bring an enforcement action. 4 The starting point is\n\nthe language of the statute. United States Dep’t of Transp. v. Paralyzed Veterans of\n\nAm., 477 U.S. 597, 604 (1986). If the words of the statute are unambiguous, then\n\nwe may conclude the inquiry there. Connecticut Nat’l Bank v. Germain, 503 U.S.\n\n249, 254 (1992).\n\n Through a series of cross-references, the enforcement mechanism for Title II\n\nof the ADA is ultimately Title VI of the Civil Rights Act of 1964. See 42 U.S.C.\n\n§ 12133; 29 U.S.C. § 794a; 42 U.S.C. § 2000d-1. Section 12133 of Title II states\n\n\n\n 4\n Florida maintains that Supreme Court decisions examining Title II’s enforcement\nprovisions that consistently mention private enforcement without considering public enforcement\nsupport a conclusion that Title II was never meant to permit public enforcement. But in each of\nthose cases, the Supreme Court was confronted with questions stemming from private litigation\n(the United States intervened to defend abrogation of state sovereign immunity in two cases). See\nFry v. Napoleon Cmty. Schs., 137 S. Ct. 743, 751–52 (2017); United States v. Georgia, 546 U.S.\n151, 154–55 (2006); Tennessee v. Lane, 541 U.S. 509, 513 (2004); Barnes v. Gorman, 536 U.S.\n181, 183 (2002); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 588 (1999). The Court was not\nrequired to consider whether the Attorney General could enforce Title II in those cases. We do\nnot consider the Supreme Court’s silence on an issue that was not presented dispositive.\n 7\n\n Case: 17-13595 Date Filed: 09/17/2019 Page: 8 of 66\n\n\nthat the “remedies, procedures, and rights” available to a person alleging\n\ndiscrimination are those available in § 505 of the Rehabilitation Act of 1973,\n\n29 U.S.C. § 794a. Section 505 contains a provision for enforcing § 504 of the\n\nRehabilitation Act, which prohibits discrimination on the basis of disability by\n\nprograms and activities receiving federal financial assistance. See 29 U.S.C.\n\n§§ 794(a); 794a. In relevant part, § 505 states that:\n\n The remedies, procedures, and rights set forth in title VI\n of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.)\n (and in subsection (e)(3) of section 706 of such Act (42\n U.S.C. 2000e-5), applied to claims of discrimination in\n compensation) shall be available to any person aggrieved\n by any act or failure to act by any recipient of Federal\n assistance or Federal provider of such assistance under\n section 794 of this title.\n\n29 U.S.C. § 794a(a)(2).\n\n Like § 504 of the Rehabilitation Act, § 601 of Title VI of the Civil Act of 1964\n\nprohibits discrimination, exclusion, or denial of benefits—in that statutory scheme,\n\non the basis of race, color, or national origin—by “any program or activity receiving\n\nfederal financial assistance.” 42 U.S.C. § 2000d.\n\n Section 602 of Title VI requires the various federal departments and agencies\n\nthat provide federal financial assistance to “effectuate” § 601 by “issuing rules,\n\nregulations, or orders of general applicability . . . .” 42 U.S.C. § 2000d-1. Agencies\n\nmay “effect” “[c]ompliance with any requirement adopted pursuant to this\n\nsection . . . (1) by the termination of or refusal to grant or to continue assistance\n 8\n\n Case: 17-13595 Date Filed: 09/17/2019 Page: 9 of 66\n\n\nunder such program or activity to any recipient . . . or (2) by any other means\n\nauthorized by law . . . .” Ibid. Before any action may be taken, the department or\n\nagency must issue appropriate notice and determine that it cannot obtain voluntary\n\ncompliance. Ibid.\n\n Florida insists that we need not consider the “remedies, procedures, and\n\nrights” available in § 505 of the Rehabilitation Act, or Title VI of the Civil Rights\n\nAct. It reasons that, because the Attorney General is not a “person alleging\n\ndiscrimination,” he is “not within the class to whom Title II provides enforcement\n\nauthority,” and therefore is not authorized to bring suit to enforce Title II. To support\n\nthis argument, Florida compares Titles I and III of the ADA, which expressly\n\nmention the Attorney General, with Title II, which does not.5\n\n The United States contends that this interpretation (followed by the district\n\ncourt) “misreads the plain text of Title II.” It asserts that “Title II does not authorize\n\nthe Attorney General to file enforcement suits by equating the Attorney General with\n\na ‘person alleging discrimination.’” Rather, it contends that the phrase “remedies,\n\nprocedures, and rights” in § 12133 is the operative phrase for statutory analysis. By\n\n\n\n\n 5\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: United States v. Secretary Florida Agency for Health Care Administration\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-09-17\\nOpinion type: majority\\nHas dissenting opinion: Yes\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-13595 Date Filed: 09/17/2019 Page: 1 of 66\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-13595\\n ________________________\\n\\n D.C. Docket No. 0:12-cv-60460-WJZ\\n\\nUNITED STATES OF AMERICA,\\n Plaintiff-Appellants,\\n versus\\n\\nSTATE OF FLORIDA,\\n Defendant-Appellees.\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (September 17, 2019)\\n\\nBefore JILL PRYOR, BRANCH, and BOGGS,∗ Circuit Judges.\\n\\n Table of Contents\\nANALYSIS ................................................................................................................5\\nI. An Overview of Title II of the ADA ......................................................................5\\nII. The Remedial Structure of Title VI of the Civil Rights Act ...............................12\\n A. Title VI Enforcement Regulations Contemplate Department of Justice\\n Enforcement Suits ................................................................................................14\\n\\n\\n\\n ∗\\n Honorable Danny J. Boggs, United States Circuit Judge for the Sixth Circuit, sitting by\\ndesignation.\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 2 of 66\\n\\n\\n B. Enforcing Title VI: Any Other Means Authorized By Law ...........................17\\nIII. Section 505 of the Rehabilitation Act ................................................................21\\n A. Rehabilitation Act Enforcement Regulations Tracked Title VI Regulations .22\\n B. Department of Justice Enforcement of the Rehabilitation Act .......................27\\nIV. Enforcement of Title II of the ADA ..................................................................32\\n A. Title II Enforcement Regulations Follow Regulations Promulgated Under the\\n Rehabilitation Act and Title VI............................................................................33\\n B. Title II of the ADA Permits Department of Justice Enforcement ..................39\\n C. The Legislative History of Title II Supports the Attorney General’s Authority\\n to File Suit ............................................................................................................46\\n D. The Department of Justice Has Filed Suit to Enforce Title II ........................51\\n E. Federalism Principles Do Not Alter Our Conclusion......................................54\\nCONCLUSION ........................................................................................................58\\n\\n\\n\\nBOGGS, Circuit Judge:\\n\\n In September 2012, after completing a six-month investigation, the\\n\\nDepartment of Justice issued a Letter of Findings notifying Florida that it was failing\\n\\nto meet its obligations under Title II of the Americans With Disabilities Act of 1990\\n\\n(“ADA”) and its implementing regulations, by “unnecessarily institutionalizing\\n\\nhundreds of children with disabilities in nursing facilities.” The Department of\\n\\nJustice also asserted that Florida’s Medicaid policies and practices placed other\\n\\n\\n\\n\\n 2\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 3 of 66\\n\\n\\nchildren who have “medically complex” 1 conditions, or who are “medically\\n\\nfragile,” 2 at risk of unnecessary institutionalization.\\n\\n The Department of Justice negotiated with Florida to attempt to resolve the\\n\\nviolations identified in the Letter of Findings. After concluding that it could not\\n\\nobtain voluntary compliance, the Department of Justice filed suit in the Southern\\n\\nDistrict of Florida in July 2013, seeking declaratory and injunctive relief under Title\\n\\nII of the ADA and 28 C.F.R. § 35.130(d).\\n\\n In December 2013, pursuant to Fed. R. Civ. P. 42(a), the district court\\n\\nconsolidated the Department of Justice’s suit with a previously-filed class-action\\n\\ncomplaint from a group of children who similarly alleged that Florida’s policies\\n\\n\\n\\n\\n 1\\n The Letter of Findings relied on Florida’s then-operative definition of “medically\\ncomplex.” The term describes “a person [who] has chronic debilitating diseases or conditions of\\none (1) or more physiological or organ systems that generally make the person dependent upon\\ntwenty-four (24) hour-per-day medical, nursing, or health supervision or intervention.” Fla.\\nAdmin. Code R. 59G-1.010(164) (2012). Florida has since amended its Administrative Code, and\\nthis definition no longer appears. See Fla. Admin. Code R. 59G-1.010.\\n 2\\n At the time the Letter of Findings was issued, Florida defined “medically fragile” as a\\nperson who is:\\n\\n medically complex and whose medical condition is of such a nature\\n that he is technologically dependent, requiring medical apparatus or\\n procedures to sustain life, e.g., requires total parenteral nutrition\\n (TPN), is ventilator dependent, or is dependent on a heightened level\\n of medical supervision to sustain life, and without such services is\\n likely to expire without warning.\\n\\nFla. Admin. Code R. 59G-1.010(165) (2012). This definition no longer appears in Florida’s\\nAdministrative Code. See Fla. Admin. Code R. 59G-1.010.\\n 3\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 4 of 66\\n\\n\\ncaused, or put them at risk of, unnecessary institutionalization and unlawful\\n\\nsegregation on the basis of disability. See A.R. v. Sec’y Fla. Agency for Health Care\\n\\nAdmin., 769 F. App’x 718 (11th Cir. 2019).\\n\\n Shortly before the consolidation, Florida filed a Motion for Judgment on the\\n\\nPleadings, asserting that Title II of the ADA did not authorize the Attorney General\\n\\nto file suit. The district court denied Florida’s motion, concluding that the\\n\\nDepartment of Justice had reasonably interpreted Title II and had the authority to\\n\\nfile suit to enforce Title II. See A.R. v. Dudek, 31 F. Supp. 3d 1363, 1367 (S.D. Fla.\\n\\n2014).\\n\\n In 2016, the district court sua sponte revisited the issue3 and dismissed the\\n\\nDepartment of Justice’s case because it concluded that the Attorney General lacked\\n\\nstanding to sue under Title II of the ADA. See C.V. v. Dudek, 209 F. Supp. 3d 1279,\\n\\n1282 (S.D. Fla. 2016). After further litigation, the district court dismissed the\\n\\nchildren’s case. This appeal followed.\\n\\n\\n\\n\\n 3\\n There do not appear to be any significant factual or legal changes between the 2014\\ndecision and the 2016 decision. The consolidated cases were reassigned in 2014, shortly after the\\ndistrict court decided Florida’s Motion for Judgment on the Pleadings. In 2016, the district court\\njustified its departure from the 2014 decision because it concluded that the 2014 decision\\nerroneously applied Chevron U.S.A. Inc. v. Nat. Res. Defense Council, Inc., 467 U.S. 837 (1984),\\nand improperly deferred to the Department of Justice’s interpretation of the statute. See C.V. v.\\nDudek, 209 F. Supp. 3d 1279, 1291 n.11 (S.D. Fla. 2016).\\n 4\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 5 of 66\\n\\n\\n ANALYSIS\\n\\n This case requires us to determine whether the Attorney General has a cause\\n\\nof action to enforce Title II of the ADA. This is a purely legal question, requiring\\n\\nstatutory interpretation. Therefore, the proper standard of review is de novo.\\n\\nStansell v. Revolutionary Armed Forces of Colombia, 704 F.3d 910, 914 (11th Cir.\\n\\n2014).\\n\\n I. An Overview of Title II of the ADA\\n\\n The ADA was intended to “provide a clear and comprehensive national\\n\\nmandate for the elimination of discrimination against individuals with disabilities,”\\n\\nand establish strong, enforceable standards to achieve that goal. 42 U.S.C.\\n\\n§ 12101(b)(1)–(2). Congress envisioned that, through the ADA, the Federal\\n\\nGovernment would take “a central role in enforcing the standards established in this\\n\\nchapter on behalf of individuals with disabilities,” and invoked “the sweep of\\n\\ncongressional authority, including the power to enforce the [F]ourteenth\\n\\n[A]mendment and to regulate commerce” to “address the major areas of\\n\\ndiscrimination faced day-to-day by people with disabilities.” Id. (b)(3)–(4). See\\n\\nalso United States v. Georgia, 546 U.S. 151, 154 (2006).\\n\\n Part A of Title II, 42 U.S.C. §§ 12131–12134, addresses public services\\n\\nprovided by public entities. A “public entity” means “any State or local\\n\\ngovernment,” or “any department, agency, special purpose district, or other\\n\\n\\n 5\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 6 of 66\\n\\n\\ninstrumentality of a State or States or local government . . . .” 42 U.S.C.\\n\\n§ 12131(1)(A)–(B). Title II prohibits discrimination based on disability, specifically,\\n\\n“[s]ubject to the provisions of this subchapter, no qualified individual with a\\n\\ndisability shall, by reason of such disability, be excluded from participation in or be\\n\\ndenied the benefits of the services, programs, or activities of a public entity, or be\\n\\nsubjected to discrimination by any such entity.” 42 U.S.C. § 12132. The term\\n\\n“qualified individual with a disability” means:\\n\\n an individual with a disability who, with or without\\n reasonable modifications to rules, policies, or practices,\\n the removal of architectural, communication, or\\n transportation barriers, or the provision of auxiliary aids\\n and services, meets the essential eligibility requirements\\n for the receipt of services or the participation in programs\\n or activities provided by a public entity.\\n\\n42 U.S.C. § 12131(2).\\n\\n Title II’s enforcement provision states that “[t]he remedies, procedures, and\\n\\nrights set forth in section 794a of Title 29 shall be the remedies, procedures, and\\n\\nrights this subchapter provides to any person alleging discrimination on the basis of\\n\\ndisability in violation of section 12132 of this title.” 42 U.S.C. § 12133. Congress\\n\\ndirected the Attorney General to “promulgate regulations in an accessible format\\n\\nthat implement [Title II].” 42 U.S.C. § 12134(a). Such regulations, with the\\n\\nexception of specifically-identified terms,\\n\\n shall be consistent with this chapter and with the\\n coordination regulations under part 41 of title 28, Code of\\n 6\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 7 of 66\\n\\n\\n Federal Regulations (as promulgated by the Department of\\n Health, Education, and Welfare on January 13, 1978),\\n applicable to recipients of Federal financial assistance\\n under section 794 of Title 29.\\n\\nId. (b).\\n\\n It is undisputed that Title II permits a private cause of action for injunctive\\n\\nrelief or money damages. Fry v. Napoleon Cmty. Schs., 137 S. Ct. 743, 750 (2017).\\n\\nWe must determine whether Title II’s enforcement scheme, 42 U.S.C. § 12133,\\n\\npermits the Attorney General to bring an enforcement action. 4 The starting point is\\n\\nthe language of the statute. United States Dep’t of Transp. v. Paralyzed Veterans of\\n\\nAm., 477 U.S. 597, 604 (1986). If the words of the statute are unambiguous, then\\n\\nwe may conclude the inquiry there. Connecticut Nat’l Bank v. Germain, 503 U.S.\\n\\n249, 254 (1992).\\n\\n Through a series of cross-references, the enforcement mechanism for Title II\\n\\nof the ADA is ultimately Title VI of the Civil Rights Act of 1964. See 42 U.S.C.\\n\\n§ 12133; 29 U.S.C. § 794a; 42 U.S.C. § 2000d-1. Section 12133 of Title II states\\n\\n\\n\\n 4\\n Florida maintains that Supreme Court decisions examining Title II’s enforcement\\nprovisions that consistently mention private enforcement without considering public enforcement\\nsupport a conclusion that Title II was never meant to permit public enforcement. But in each of\\nthose cases, the Supreme Court was confronted with questions stemming from private litigation\\n(the United States intervened to defend abrogation of state sovereign immunity in two cases). See\\nFry v. Napoleon Cmty. Schs., 137 S. Ct. 743, 751–52 (2017); United States v. Georgia, 546 U.S.\\n151, 154–55 (2006); Tennessee v. Lane, 541 U.S. 509, 513 (2004); Barnes v. Gorman, 536 U.S.\\n181, 183 (2002); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 588 (1999). The Court was not\\nrequired to consider whether the Attorney General could enforce Title II in those cases. We do\\nnot consider the Supreme Court’s silence on an issue that was not presented dispositive.\\n 7\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 8 of 66\\n\\n\\nthat the “remedies, procedures, and rights” available to a person alleging\\n\\ndiscrimination are those available in § 505 of the Rehabilitation Act of 1973,\\n\\n29 U.S.C. § 794a. Section 505 contains a provision for enforcing § 504 of the\\n\\nRehabilitation Act, which prohibits discrimination on the basis of disability by\\n\\nprograms and activities receiving federal financial assistance. See 29 U.S.C.\\n\\n§§ 794(a); 794a. In relevant part, § 505 states that:\\n\\n The remedies, procedures, and rights set forth in title VI\\n of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.)\\n (and in subsection (e)(3) of section 706 of such Act (42\\n U.S.C. 2000e-5), applied to claims of discrimination in\\n compensation) shall be available to any person aggrieved\\n by any act or failure to act by any recipient of Federal\\n assistance or Federal provider of such assistance under\\n section 794 of this title.\\n\\n29 U.S.C. § 794a(a)(2).\\n\\n Like § 504 of the Rehabilitation Act, § 601 of Title VI of the Civil Act of 1964\\n\\nprohibits discrimination, exclusion, or denial of benefits—in that statutory scheme,\\n\\non the basis of race, color, or national origin—by “any program or activity receiving\\n\\nfederal financial assistance.” 42 U.S.C. § 2000d.\\n\\n Section 602 of Title VI requires the various federal departments and agencies\\n\\nthat provide federal financial assistance to “effectuate” § 601 by “issuing rules,\\n\\nregulations, or orders of general applicability . . . .” 42 U.S.C. § 2000d-1. Agencies\\n\\nmay “effect” “[c]ompliance with any requirement adopted pursuant to this\\n\\nsection . . . (1) by the termination of or refusal to grant or to continue assistance\\n 8\\n\\n Case: 17-13595 Date Filed: 09/17/2019 Page: 9 of 66\\n\\n\\nunder such program or activity to any recipient . . . or (2) by any other means\\n\\nauthorized by law . . . .” Ibid. Before any action may be taken, the department or\\n\\nagency must issue appropriate notice and determine that it cannot obtain voluntary\\n\\ncompliance. Ibid.\\n\\n Florida insists that we need not consider the “remedies, procedures, and\\n\\nrights” available in § 505 of the Rehabilitation Act, or Title VI of the Civil Rights\\n\\nAct. It reasons that, because the Attorney General is not a “person alleging\\n\\ndiscrimination,” he is “not within the class to whom Title II provides enforcement\\n\\nauthority,” and therefore is not authorized to bring suit to enforce Title II. To support\\n\\nthis argument, Florida compares Titles I and III of the ADA, which expressly\\n\\nmention the Attorney General, with Title II, which does not.5\\n\\n The United States contends that this interpretation (followed by the district\\n\\ncourt) “misreads the plain text of Title II.” It asserts that “Title II does not authorize\\n\\nthe Attorney General to file enforcement suits by equating the Attorney General with\\n\\na ‘person alleging discrimination.’” Rather, it contends that the phrase “remedies,\\n\\nprocedures, and rights” in § 12133 is the operative phrase for statutory analysis. By\\n\\n\\n\\n\\n 5\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4497,"cells":{"id":{"kind":"number","value":4661912,"string":"4,661,912"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Albert Schaw v. Habitat for Humanity of Citrus County, Inc."},"decision_date":{"kind":"string","value":"2019-09-18"},"docket_number":{"kind":"string","value":"17-13960"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before TJOFLAT, MARCUS, and NEWSOM, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"NEWSOM, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 17-13960 Date Filed: 09/18/2019 Page: 1 of 31\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-13960\\n ________________________\\n\\n D.C. Docket No. 5:16-cv-00311-JSM-PRL\\n\\n\\n\\nALBERT SCHAW,\\n\\n Plaintiff - Appellant,\\n\\n versus\\n\\nHABITAT FOR HUMANITY OF CITRUS COUNTY, INC.,\\n\\n Defendant - Appellee.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (September 18, 2019)\\n\\nBefore TJOFLAT, MARCUS, and NEWSOM, Circuit Judges.\\n\\nNEWSOM, Circuit Judge:\\n\\n Albert Schaw, a quadriplegic, applied for a home with Habitat for Humanity\\n\\nof Citrus County. Because his annual social-security-disability income didn’t meet\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 2 of 31\\n\\n\\nHabitat’s minimum-income threshold, Schaw requested an accommodation that\\n\\nwould allow him to supplement those funds with either food stamps or a notarized\\n\\nletter memorializing the financial support that he received from his family. When\\n\\nHabitat refused, Schaw sued under the Fair Housing Amendments Act, 42 U.S.C.\\n\\n§ 3601 et. seq., which prohibits an entity from discriminating against a disabled\\n\\nindividual by failing to make “reasonable accommodations” in policies and\\n\\npractices that are “necessary to afford” the individual an “equal opportunity to use\\n\\nand enjoy a dwelling.” Id. § 3604(f)(3)(B). Schaw separately alleged that\\n\\nHabitat’s minimum-income requirement has a disparate impact on disabled\\n\\nindividuals receiving social-security-disability income.\\n\\n The district court granted Habitat summary judgment on the basis that\\n\\nSchaw’s requested accommodation wasn’t “necessary” within the meaning of the\\n\\nAct, reasoning that it would alleviate only his “financial condition—not his\\n\\ndisability.” The court also concluded that Schaw had failed to state a disparate-\\n\\nimpact claim. After careful review, we conclude that while the district court\\n\\ncorrectly rejected Schaw’s disparate-impact claim, it failed to properly analyze his\\n\\nfailure-to-accommodate claim. Accordingly, we vacate and remand for further\\n\\nproceedings consistent with this opinion as to Schaw’s failure-to-accommodate\\n\\nclaim.\\n\\n\\n\\n\\n 2\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 3 of 31\\n\\n\\n I\\n\\n A\\n\\n Shortly after he graduated from high school, Albert Schaw was in a\\n\\nwrestling accident that left him completely paralyzed. Schaw is now wheelchair-\\n\\nbound, and his current abode is ill-suited to accommodate his quadriplegia—it isn’t\\n\\nwheelchair accessible, and there’s no way for him to close the bathroom door for\\n\\nprivacy. After seeing a television advertisement for Habitat for Humanity, a\\n\\nnonprofit that builds new homes for low-income individuals, Schaw decided to\\n\\napply.\\n\\n When Schaw met to discuss the application process with Habitat’s Family\\n\\nServices Director, Rose Strawn, he learned that Habitat imposes a minimum-gross-\\n\\nannual-income requirement of $10,170, presumably to ensure that potential\\n\\nhomeowners will be able to pay their mortgages. According to Schaw, his\\n\\ndisability prevents him from working, so his main source of income is a Social\\n\\nSecurity Disability Insurance stipend of $778 per month, which equates to a gross\\n\\nannual income of $9,336. Given the fixed nature of his SSDI, Schaw asked\\n\\nHabitat to consider one of two other sources of income toward its requirement.\\n\\nFirst, Schaw receives $194 per month in food stamps. With the food stamps,\\n\\nSchaw’s gross annual income would be $11,664—enough to qualify. Second,\\n\\nSchaw receives $100 per month in familial support from his father. With that gift,\\n\\n\\n 3\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 4 of 31\\n\\n\\nhis gross annual income (even excluding the food stamps) would be $10,536—also\\n\\nenough to qualify. On Strawn’s recommendation, Schaw provided a notarized\\n\\nletter from his father confirming that he gives Schaw $100 each month.\\n\\n Habitat’s Board of Directors reviewed Schaw’s application and determined\\n\\nthat it couldn’t accept either of the two additional sources of income. It wouldn’t\\n\\nconsider the food stamps because Habitat follows HUD guidelines, which provide\\n\\nthat food stamps don’t count as income. And it wouldn’t accept the notarized letter\\n\\nfrom Schaw’s father because the letter wasn’t a legally enforceable guarantee that\\n\\nthe monthly support would continue. The Board therefore rejected Schaw’s\\n\\napplication. It did, however, indicate that it would reconsider if the familial\\n\\nsupport took the form of a trust or an annuity.\\n\\n Shortly thereafter, Schaw’s attorney, Rebecca Bell, contacted Strawn to\\n\\nexplain that a trust wouldn’t work because it could jeopardize Schaw’s ability to\\n\\nreceive government benefits. When Strawn then suggested an annuity, Bell\\n\\nexplained that she didn’t handle annuities but knew financial advisors who did, and\\n\\nStrawn took that to mean that Bell would discuss the annuity option with Schaw.\\n\\nStrawn then sent Schaw a “Letter of Intent” explaining the conditions he needed to\\n\\nmeet in order to qualify. One of those requirements was that he “[p]rovide\\n\\ndocumentation for [an] Annuity Plan, (for minimum of five years), as verification\\n\\nof monthly support provided by [his] Father.” Later, Schaw (through his aunt,\\n\\n\\n 4\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 5 of 31\\n\\n\\nSusan Hale) sent an email to Habitat inquiring as to the status of his application.\\n\\nGeorge Rusaw, Habitat’s president and CEO, responded that Schaw needed to\\n\\nprovide “legally codified” evidence of the familial support and that “the notarized\\n\\nletter from [Schaw’s] father [was] legally insufficient.”\\n\\n B\\n\\n Schaw sued Habitat under the Fair Housing Amendments Act, 42 U.S.C.\\n\\n§ 3604(f), bringing two separate claims. First, he asserted that Habitat violated\\n\\n§ 3604(f)(3)(B), which requires “reasonable accommodations in rules, policies,\\n\\npractices, or services, when such accommodations may be necessary to afford such\\n\\nperson equal opportunity to use and enjoy a dwelling.” Habitat failed to provide a\\n\\nreasonable accommodation for his disability, Schaw asserted, by refusing to\\n\\nconsider his food stamps or familial support as income in lieu of wages earned.\\n\\nSecond, Schaw alleged that Habitat’s minimum-income requirement has a\\n\\ndisparate impact on applicants receiving SSDI.\\n\\n After discovery, the parties filed cross-motions for summary judgment on\\n\\nboth claims. Habitat accepted the facts alleged by Schaw and conceded (1) that\\n\\nSchaw is disabled within the meaning of the Act, (2) that Schaw asked Habitat to\\n\\nconsider his food stamps and familial support as supplemental income, and (3) that\\n\\nHabitat refused to consider the food stamps and the familial support—other than in\\n\\nthe form of a trust or annuity—as income for purposes of his application. Habitat\\n\\n\\n 5\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 6 of 31\\n\\n\\ndisputed, however, that the accommodation that Schaw requested was “reasonable”\\n\\nwithin the meaning of the Act.\\n\\n Shortly after the parties filed their motions, Schaw moved for leave to\\n\\namend his complaint, seeking to clarify the effect that a trust or annuity would\\n\\nhave on his government benefits. At the time he filed the complaint, Schaw\\n\\nbelieved that a trust or annuity would render him ineligible for SSDI benefits. He\\n\\nthen learned that while a trust or annuity wouldn’t affect his SSDI, it could risk his\\n\\neligibility for other needs-based assistance, such as Medicare. Because the district\\n\\ncourt didn’t believe that these changes would affect its analysis as to the relevant\\n\\nquestions of law, it declined to address the motion for leave to amend before ruling\\n\\non the summary-judgment motions.\\n\\n The district court granted Habitat’s motion for summary judgment. The\\n\\ncourt didn’t address the “reasonable[ness]” of Schaw’s request, concluding instead\\n\\nthat the accommodation wasn’t “necessary” within the meaning of the Act because\\n\\nit “went solely to his financial condition—not his disability.” The court also\\n\\nconcluded that summary judgment was appropriate because Schaw had failed to\\n\\nattempt in good faith to take advantage of Habitat’s proposed “alternative\\n\\naccommodation”—namely, to have his father set up familial support in the form of\\n\\na trust or annuity. As to Schaw’s second claim, the court determined that he had\\n\\n\\n\\n\\n 6\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 7 of 31\\n\\n\\nfailed to provide any evidence that Habitat’s requirements had a disparate impact\\n\\non SSDI recipients. This appeal followed.\\n\\n II\\n\\n The Fair Housing Amendments Act of 1988 exists “to prohibit\\n\\ndiscrimination based on handicap and familial status.” Schwarz v. City of Treasure\\n\\nIsland, 544 F.3d 1201, 1212 (11th Cir. 2008). As relevant here, discrimination\\n\\nincludes refusing “to make reasonable accommodations in rules, policies,\\n\\npractices, or services, when such accommodations may be necessary to afford [a\\n\\ndisabled] person equal opportunity to use and enjoy a dwelling.” 42 U.S.C.\\n\\n§ 3604(f)(3)(B).\\n\\n To prevail on a failure-to-accommodate claim, a plaintiff must prove (1) that\\n\\nhe is disabled, (2) that he requested a “reasonable accommodation,” (3) that the\\n\\nrequested accommodation was “necessary to afford [him an] equal opportunity to\\n\\nuse and enjoy the dwelling,” and (4) that the defendant refused to make the\\n\\nrequested accommodation. Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1225–26\\n\\n(11th Cir. 2016). The first and last elements are undisputed in this case—no one\\n\\nhere disputes that Schaw is disabled or that Habitat refused to accommodate his\\n\\nrequest that it consider his supplemental sources of income. Accordingly, we\\n\\nfocus on the middle two elements—whether the accommodation that Schaw\\n\\nrequested was “reasonable” and whether it was “necessary to afford [him] an equal\\n\\n\\n 7\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 8 of 31\\n\\n\\nopportunity to use and enjoy a dwelling.” Id. at 1225. The district court skipped\\n\\nthe first question and decided the case solely on the basis of the second. But\\n\\nbecause we find that a genuine issue of material fact exists as to both, we will\\n\\naddress each in turn.1\\n\\n A\\n\\n 1\\n\\n First, what do we mean when we talk about a “reasonable accommodation”\\n\\nunder the Act? The reasonableness inquiry considers “whether the requested\\n\\naccommodation ‘is both efficacious and proportional to the costs to implement it.’”\\n\\nBhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765 F.3d 1277, 1289 (11th Cir.\\n\\n2014) (quoting Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d\\n\\n775, 784 (7th Cir. 2002)). 2 Assessing reasonableness “require[s] a balancing of the\\n\\nparties’ needs.” Id. An accommodation isn’t reasonable if it requires “a\\n\\nfundamental alteration in the nature of a program” or imposes “undue financial and\\n\\nadministrative burdens.” Southeastern Comm. Coll. v. Davis, 442 U.S. 397, 410,\\n\\n1\\n We review de novo the district court’s grant of summary judgment. Loren v. Sasser, 309 F.3d\\n1296, 1301 (11th Cir. 2002) (per curiam) (citation omitted). Summary judgment is appropriate\\nonly if “the movant shows that there is no genuine dispute as to any material fact and the movant\\nis entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).\\n2\\n Although our case law addressing reasonable accommodations under the Fair Housing\\nAmendments Act is rather thin, “Congress imported the reasonable-accommodation concept”\\nfrom case law interpreting the Americans with Disabilities Act and the Rehabilitation Act.\\nSchwarz, 544 F.3d at 1220. Because “we have applied [these] reasonable-accommodation\\nrequirements on numerous occasions,” we can “look to case law” under the ADA and RA for\\n“guidance on what is reasonable under the [Fair Housing Amendments Act].” Id.\\n\\n 8\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 9 of 31\\n\\n\\n412 (1979) (interpreting the term “reasonable accommodation” in the analogous\\n\\nRehabilitation Act context); see also Schwarz, 544 F.3d at 1220. This Court has\\n\\nexplained—in imaginative terms—that “[t]he difference between [an]\\n\\naccommodation that is required and [a] transformation that is not is the difference\\n\\nbetween saddling a camel and removing its hump.” Lucas v. W.W. Grainger, Inc.,\\n\\n257 F.3d 1249, 1260 (11th Cir. 2001) (interpreting the term “reasonable\\n\\naccommodation” in the analogous Americans with Disabilities Act context).\\n\\n A plaintiff carries the initial burden of showing that his proposed\\n\\naccommodation is reasonable; however, on a showing of a facially reasonable\\n\\nrequest, it’s up to the defendant to demonstrate why the requested accommodation\\n\\nwould cause undue hardship. U.S. Airways v. Barnett, 535 U.S. 391, 401–02\\n\\n(2002).3 The Supreme Court has explained that “a plaintiff/employee (to defeat a\\n\\ndefendant/employer’s motion for summary judgment) need only show that an\\n\\n‘accommodation’ seems reasonable on its face, i.e., ordinarily or in the run of\\n\\ncases.” Id. at 401 (citation omitted). This doesn’t necessarily mean that a\\n\\ndefendant is required “to accommodate a [plaintiff] in any manner in which that\\n\\n\\n3\\n There is, of course, some overlap between these inquiries. But “[t]hat the evidence probative of\\nthe issue of whether an accommodation for the [plaintiff] is reasonable will often be similar (or\\nidentical) to the evidence probative of the issue whether a resulting hardship for the [defendant]\\nis undue, does not change the fact that establishing that a reasonable accommodation exists is a\\npart of a [FHAA] plaintiff’s case, whereas undue hardship is an affirmative defense to be pled\\nand proven by a [FHAA] defendant.” Willis v. Conopco, Inc., 108 F.3d 282, 286 (11th Cir.\\n1997).\\n\\n 9\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 10 of 31\\n\\n\\n[plaintiff] desires.” Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d\\n\\n1278, 1285 (11th Cir. 1997) (quotation omitted). It does mean, though, that the\\n\\ninitial threshold presents a relatively low bar. See Willis, 108 F.3d at 286 & n.2\\n\\n(11th Cir. 1997) (“As a general matter, a reasonable accommodation is one\\n\\nemploying a method of accommodation that is reasonable in the run of cases . .\\n\\n. .”) (quoting Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993)); see also Hunt,\\n\\n814 F.3d at 1226 (assuming that a mother’s request for accommodation was\\n\\nreasonable when she sought an exception to an apartment complex’s lease-\\n\\nnonrenewal policy while making arrangements for her disabled son to be placed in\\n\\noffsite care).\\n\\n If a plaintiff’s request is facially reasonable, the burden shifts to the\\n\\ndefendant, who must prove that the accommodation would nonetheless impose an\\n\\n“undue burden” or result in a “fundamental alteration” of its program. Schwarz,\\n\\n544 F.3d at 1220. An accommodation requires a “fundamental alteration” if it\\n\\nwould “eliminate an ‘essential’ aspect of the relevant activity,” id. at 1220–21—or,\\n\\nif you prefer, would “remov[e] [the camel’s] hump,” Lucas, 257 F.3d at 1260.\\n\\nWhether a particular aspect of an activity is “essential” will turn on the facts of\\n\\neach case. Schwarz, 544 F.3d at 1221; see also Staron v. McDonald’s Corp., 51\\n\\nF.3d 353, 356 (2d Cir. 1995) (“[T]he determination of whether a particular\\n\\nmodification is ‘reasonable’ involves a fact-specific, case-by-case inquiry that\\n\\n\\n 10\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 11 of 31\\n\\n\\nconsiders, among other factors, the effectiveness of the modification . . . and the\\n\\ncost to the organization that would implement it.”).\\n\\n While that may sound a little squishy, we aren’t without guidance in this\\n\\narea. In Schwarz v. City of Treasure Island, we acknowledged that the Supreme\\n\\nCourt had determined that the analogous ADA required the PGA Tour to allow a\\n\\ncontestant to use a golf cart rather than walk during a tournament. 544 F.3d at\\n\\n1221 (discussing PGA Tour, Inc. v. Martin, 532 U.S. 661, 689 (2001)). While\\n\\nriding in a golf cart arguably provides an advantage of sorts, the Court explained\\n\\nthat the Tour’s walking rule was not “an essential rule of competition” but was “at\\n\\nbest peripheral to the nature of [its] athletic events.” See Martin, 532 U.S. at 689.\\n\\n Another way to look at the “essential”-ness (or “fundamental”-ness) issue\\n\\nmight be to ask, “What is the basic purpose of the rule or policy at issue?” In\\n\\nSchwarz, we considered a request for a variance to allow several halfway houses—\\n\\nwhich are classified as tourist-dwellings because of their high turnover rates—to\\n\\noperate, some in a designated single-family residential zone and others in a zone\\n\\nthat allowed multi-family dwellings. 544 F.3d at 1205–06. In the process of\\n\\nevaluating the City’s defense, we examined the basic purpose of zoning—“to bring\\n\\ncomplementary land uses together, while separating incompatible ones.” Id. at\\n\\n1221. We held that the low-turnover rule embodied in the prohibition on tourist\\n\\ndwellings went to the basic purpose of the single-family zoning restrictions—to\\n\\n\\n 11\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 12 of 31\\n\\n\\nprovide quiet, safety, and permanence in single-family residential neighborhoods.\\n\\nId. at 1223. We also concluded, however, that the same rule was not an “essential”\\n\\naspect of multi-family zones. Id. at 1223–24. Despite the City’s arguments about\\n\\ntraffic congestion, noise, and other potential problems, we determined that\\n\\nallowing short-term recovery homes to operate in multi-family zones didn’t effect\\n\\nthe same kind of “fundamental alteration” that it would in single-family zones. Id.\\n\\nat 1225. Compare also, e.g., Se. Cmty. Coll., 442 U.S. at 410 (requiring a nursing\\n\\nschool to waive all clinical requirements for a deaf applicant would fundamentally\\n\\nalter the nature of the nursing program), with, e.g., Anderson v. City of Blue Ash,\\n\\n798 F.3d 338, 363 (6th Cir. 2015) (allowing a miniature therapy horse to reside in\\n\\ndisabled girl’s backyard wouldn’t necessarily fundamentally alter the nature of\\n\\nsingle-family neighborhoods).\\n\\n When evaluating whether an accommodation would impose an undue\\n\\nburden, courts also weigh the respective costs and benefits of the accommodation\\n\\nto the parties, performing a “balancing of the parties’ needs.” Bhogaita, 765 F.3d\\n\\nat 1288 (citation omitted). In Oconomowoc Residential Programs v. City of\\n\\nMilwaukee, the Seventh Circuit evaluated a plaintiff’s request for a variance from a\\n\\nmunicipal ordinance restricting community living facilities from operating within\\n\\n2,500 feet of similar facilities. 300 F.3d at 777. The plaintiff demonstrated the\\n\\nreasonableness of the accommodation by pointing to a shortage of area residential\\n\\n\\n 12\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 13 of 31\\n\\n\\nfacilities for brain-injured individuals and to court orders requiring two individuals\\n\\nto be transferred to a group home as soon as possible. Id. at 779. Although the\\n\\nCity pointed to a slew of potential issues in return, including increased traffic and\\n\\nadverse effects on neighborhood parking, the Court found that none of those\\n\\ninconveniences could be construed as an undue administrative or financial burden.\\n\\nId. at 785–87.\\n\\n Salute v. Stratford Greens Garden Apartments, 136 F.3d 293 (2d Cir. 1998),\\n\\nis an illustrative decision to the contrary. There, two disabled individuals who\\n\\nqualified for low-income housing assistance under the federal government’s\\n\\n“Section 8” program applied for apartments at Stratford Greens. Id. at 296. Both\\n\\nwere turned away, however, because the apartment manager “d[id] not want to get\\n\\ninvolved with the federal government and its rules and regulations.” Id. In\\n\\nresponse, the applicants filed a complaint under the Fair Housing Amendments\\n\\nAct, alleging that Stratford Greens had discriminated against them by “refusing to\\n\\nmake ‘reasonable accommodations’ to facilitate the rental.” Id. The Second\\n\\nCircuit determined, though, that “the burden of participating in the Section 8\\n\\nprogram” could not be viewed as imposing “only reasonable costs or insubstantial\\n\\nburdens.” Id. at 301. Requiring an apartment complex to accept Section 8\\n\\napplicants, the court explained, would impose an undue burden because\\n\\nparticipation in a federal program “will or may entail” a number of encumbrances,\\n\\n\\n 13\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 14 of 31\\n\\n\\nincluding “financial audits, maintenance requirements, inspection of the premises,\\n\\nreporting requirements, [and] an increased risk of litigation.” Id. Having to\\n\\nrework its leasing program to accommodate these numerous requirements, the\\n\\ncourt concluded, would effect “a fundamental alteration” of the complex’s rental\\n\\npolicies. Id.\\n\\n So, what’s the upshot? From these decisions, we glean the following\\n\\nprinciples. First, a plaintiff need only demonstrate a facially reasonable request—\\n\\nor one that seems reasonable in “the run of cases.” Willis, 108 F.3d at 286;\\n\\nBarth, 2 F.3d at 1187. Second, a defendant may then proffer evidence that the\\n\\nplaintiff’s request would nonetheless cause an undue burden or a fundamental\\n\\nalteration of its policy or program. Third, in evaluating the evidence, a court may\\n\\nconsider whether the plaintiff’s requested accommodation would eliminate an\\n\\n“essential aspect” of the defendant’s policy or program or simply inconvenience it,\\n\\nkeeping in mind the “basic purpose” of the policy or program at issue, and\\n\\nweighing the benefits to the plaintiff against the burdens on the defendant.\\n\\n 2\\n\\n Back to Schaw. The district court didn’t address whether Schaw’s requested\\n\\naccommodation was of a type likely to be reasonable in the “run of cases,”\\n\\npreferring to grant judgment primarily on the ground that any accommodation was\\n\\nnot, within the meaning of the Act, “necessary to afford [him an] equal opportunity\\n\\n\\n 14\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 15 of 31\\n\\n\\nto use and enjoy a dwelling.” (Much more on necessity below—but\\n\\nreasonableness first.) Let’s begin, then, by looking at the nature of Schaw’s\\n\\nrequest: to submit food stamps or familial support in lieu of W-2 income for the\\n\\npurpose of meeting Habitat’s minimum-income requirement. Recall that Habitat\\n\\nrequires its program applicants to demonstrate a minimum gross annual income of\\n\\n$10,170, or $847.50 per month. Schaw receives a gross annual income of $9,336,\\n\\nor $778 in SSDI per month. He also receives $100 per month in familial support,\\n\\nincreasing his gross annual income to $10,536. Factoring in his $194 in food\\n\\nstamps, he brings in a total of $12,864. If Habitat credited either the food stamps\\n\\nor the familial support, Schaw would meet the minimum-income requirement.\\n\\n Is Schaw’s request that Habitat accept food stamps or familial support\\n\\ntoward its minimum-income requirement in lieu of ordinary wages facially\\n\\n“reasonable”? Seems so to us. To be clear, Schaw didn’t ask Habitat to lower its\\n\\nminimum-income requirement or to accept any less than usual in terms of payment\\n\\nor interest. Instead, Schaw—who is unable to work—asked Habitat to accept\\n\\nproof that he brings in the same amount of money as any other Habitat\\n\\nhomeowner, but in a different form. This request strikes us as the type of\\n\\naccommodation that the Supreme Court has deemed at least facially reasonable. It\\n\\nis more akin, we think, to allowing a golfer to use a cart—completing the essential\\n\\naspects of the game in a different way—than requiring a nursing program to waive\\n\\n\\n 15\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 16 of 31\\n\\n\\nall clinical requirements—removing the essential aspects of a program. Compare\\n\\nPGA Tour, 532 U.S. at 689, with Se. Cmty. Coll., 442 U.S. at 410. Rather than\\n\\nseeking a waiver of a basic requirement of Habitat’s housing program, Schaw asks\\n\\nto meet those basic requirements in his own way. That seems to us sufficient to\\n\\nmeet the relatively low facial-reasonableness bar adopted in Barnett. See 535 U.S.\\n\\nat 401–02.\\n\\n It’s a separate question, though—one that we decline to decide in the first\\n\\ninstance—whether Habitat can nonetheless demonstrate “special . . . circumstances\\n\\nthat demonstrate undue hardship.” Id. at 401–02. Would Schaw’s requested\\n\\naccommodation modify a core aspect of Habitat’s program (i.e., remove the\\n\\ncamel’s hump) or merely inconvenience (i.e., saddle) it? The answer depends on\\n\\nthe basic purpose of the income requirement and the relative benefits and burdens\\n\\nto the parties of implementing Schaw’s request. The record indicates that Habitat’s\\n\\nrequirements exist to ensure an applicant’s ability to pay the mortgage. At least as\\n\\nmatters currently stand, we can’t say that Schaw’s proposal would meaningfully\\n\\nthwart Habitat’s minimum-income threshold. (Consider that the typical at-will\\n\\nemployee can’t guarantee an ongoing ability to pay, either.) It’s possible, of\\n\\ncourse, that on closer inspection it will become clear that the accommodation\\n\\nwould constitute “a fundamental alteration in the nature” of Habitat’s program in\\n\\nanother way or impose “undue financial or administrative burdens.” Schwarz, 544\\n\\n\\n 16\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 17 of 31\\n\\n\\nF.3d at 1218, 1220. And it’s also possible that it won’t. Because the record is\\n\\nsilent as to the likely effect of Schaw’s request, we think it prudent to remand to\\n\\nallow the district court to determine, in the first instance, whether the\\n\\naccommodation constitutes an undue burden on or fundamental alteration of\\n\\nHabitat’s program.\\n\\n We should clarify one thing before we move on to the “necessity” prong of\\n\\nSchaw’s claim. Although the record is devoid of evidence pertaining to whether\\n\\nSchaw’s requested accommodation would impose “undue financial or\\n\\nadministrative burdens,” the district court held that Habitat was entitled to\\n\\nsummary judgment because it had provided a sufficient “alternative\\n\\naccommodation” in suggesting that Schaw’s father set up a trust or an annuity to\\n\\ndisburse the familial-support funds. 4 The district court suggested, per Walden v.\\n\\nCenters for Disease Control & Prevention, 669 F.3d 1277, 1294 (11th Cir. 2012),\\n\\nthat “[o]nce Habitat offered a reasonable accommodation to Mr. Schaw, the burden\\n\\nshifted to him to make a good faith attempt to accommodate his needs through the\\n\\nproffered accommodation.” In so holding, the district court erred. In particular, it\\n\\n4\\n What Habitat asks for is essentially a guarantee that Schaw’s income will continue. That’s\\nunderstandable enough—Habitat wants assurance that if it risks accepting an alternate form of\\nincome, it will continue to be paid. But providing “insurance” in the form of a trust or annuity\\ncosts money and takes time, and the record does not reflect that Habitat requires the same level\\nof assurance from non-disabled applicants. We also know—or are told—that trust or annuity\\npayments could negatively affect Schaw’s other government-based assistance—specifically,\\nMedicare costs and premiums from which he is currently exempted. These are facts of the sort\\nthat a court might take into consideration when weighing the benefits and burdens to the parties.\\n\\n 17\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 18 of 31\\n\\n\\ntransposed the proper burden of proof, seemingly confusing the Fair Housing\\n\\nAmendments Act’s reasonable-accommodation inquiry with a religious-\\n\\naccommodation inquiry. Whereas Walden suggests that in the religious-\\n\\naccommodation context “[a]ny reasonable accommodation by the employer is\\n\\nsufficient to meet its accommodation obligation,” 669 F.3d at 1294 (citation\\n\\nomitted), Barnett makes clear—as we’ve explained—that when it comes to\\n\\nreasonable accommodation of a disability, a court at the summary-judgment stage\\n\\nmust consider first whether the plaintiff’s own requested accommodation “seems\\n\\nreasonable on its face” before turning to consider a defendant’s objections and\\n\\ncounterproposals, see 535 U.S. at 401–02. Accordingly, the district court’s\\n\\nalternative holding, shifting to Schaw the burden of proving a good-faith effort to\\n\\nmake use of Habitat’s proffered alternative accommodation, was premature. The\\n\\ncourt should have looked first to the reasonableness of Schaw’s own proposed\\n\\naccommodation before considering any outside evidence.\\n\\n B\\n\\n In addition to showing that he sought a “reasonable accommodation,” a\\n\\nplaintiff attempting to prove a failure-to-accommodate claim under the Fair\\n\\nHousing Amendments Act must demonstrate that the requested accommodation\\n\\nwas “necessary to afford [him an] equal opportunity to use and enjoy a dwelling.”\\n\\n\\n\\n\\n 18\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 19 of 31\\n\\n\\n42 U.S.C. § 3604(f)(3)(B). For clarity’s sake, we’ll assess the separate-but-related\\n\\nelements of necessity and equality—and how they apply here—one at a time.\\n\\n 1\\n\\n According to our precedent, a “‘necessary’ accommodation is one that\\n\\nalleviates the effects of a disability.” Bhogaita, 765 F.3d at 1288 (citation\\n\\nomitted). The Fair Housing Amendments Act defines “handicap” (which our\\n\\ncaselaw uses interchangeably with the term “disability”) as an impairment that\\n\\n“substantially limits one or more of a person’s major life activities,” 42 U.S.C.\\n\\n§ 3602(h), which, according to the implementing regulations, include “walking,\\n\\nseeing, hearing, speaking, breathing, learning and working,” 24 C.F.R.\\n\\n§ 100.201(b). So, linking these ideas together, an accommodation is “necessary” if\\n\\nit “alleviates the effects” of an impairment that limits a person’s ability to, among\\n\\nother things, walk, see, hear, or work. The district court here granted summary\\n\\njudgment in Habitat’s favor based primarily on this prong, concluding that,\\n\\nbecause the requested accommodation “went solely to [Schaw’s] financial\\n\\ncondition—not his disability,” it wasn’t “necessary” within the meaning of the Act.\\n\\nWe find this too simplistic an explanation.\\n\\n Schaw asserts that the “effect[] of [his] disability” relevant to this case,\\n\\nBhogaita, 765 F.3d at 1288, is his inability to work. Because of this limitation,\\n\\nSchaw says, his income consists largely of SSDI—a fixed monthly amount.\\n\\n\\n 19\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 20 of 31\\n\\n\\nSchaw contends that because he is unable to work and therefore unable to\\n\\nsupplement his SSDI himself, he should be granted an accommodation allowing\\n\\nhim to demonstrate additional income in another form: either his food stamps or a\\n\\nnotarized letter indicating familial support. The district court, however, strictly\\n\\nseparated Schaw’s “financial condition” from his “disability,” holding that\\n\\nfinancially oriented accommodations could not, as a rule, be necessary to alleviate\\n\\nthe effect of a disability. We will address this issue in two parts: (1) whether an\\n\\naccommodation can be necessary, within the meaning of the Act, to alleviate the\\n\\neconomic effects of a disability; and (2) whether Schaw has shown that the\\n\\nparticular accommodation that he has requested is in fact necessary to alleviate the\\n\\neffect of his disability.\\n\\n In concluding that Schaw’s requested accommodation “went solely to his\\n\\nfinancial condition—not his disability,” and thus wasn’t “necessary” for purposes\\n\\nof the Act, the district court relied on the Second Circuit’s pronouncement in\\n\\nSalute v. Stratford Greens Garden Apartments that the Act “addresses the\\n\\naccommodation of handicaps, not the alleviation of economic disadvantages that\\n\\nmay be correlated with having handicaps.” 136 F.3d at 301. Not in this Circuit.\\n\\nAs we explained in Bhogaita v. Altamonte Heights Condominium Association, a\\n\\n“necessary” accommodation is one that alleviates not “handicaps” per se, but\\n\\nrather “the effects of” those handicaps. 765 F.3d at 1288. This distinction is\\n\\n\\n 20\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 21 of 31\\n\\n\\nimportant here. Consider, for example, the HUD Guidelines, which list as an\\n\\nillustrative accommodation an exception to a “no pets” rule for a seeing-eye\\n\\ndog. See 24 C.F.R. § 100.204(b). In such a case, it’s not the handicap itself, but\\n\\nrather the effect of the handicap, that is being accommodated. Blindness (the\\n\\nhandicap) creates an inability to walk around safely (the effect on a major life\\n\\nactivity) and thus a need for a waiver of the prohibition on pets (the\\n\\naccommodation). Likewise, we might say, Schaw’s quadriplegia (the handicap)\\n\\ncreates an inability to work (the effect on a major life activity) and thus a need for\\n\\na waiver of the usual type-of-income requirement (the accommodation). In both\\n\\ninstances an accommodation is being provided to alleviate the effects of a\\n\\ndisability on a major life activity.\\n\\n Given the specifics of this case, we think it significant that federal law lists\\n\\n“working” as a major life activity alongside “seeing, hearing, speaking, and\\n\\nwalking.” 42 U.S.C. § 3602(h); 24 C.F.R. § 100.201(b). It would be odd, then, if\\n\\nthe Act deemed “necessary” those accommodations that “alleviate[] the effects of”\\n\\nan inability to see, hear, speak, or walk, but not those that alleviate the effects of an\\n\\ninability to work. As even the Salute court recognized, “the duty to make\\n\\nreasonable accommodations is framed by the nature of the particular handicap.”\\n\\n136 F.3d at 301 (emphasis added). In Schwarz, for instance, we recognized that\\n\\n“the ‘need’ created by a substance addiction”—the handicap—was “help with\\n\\n\\n 21\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 22 of 31\\n\\n\\nbreaking that addiction and maintaining sobriety.” 544 F.3d at 1227. With that in\\n\\nmind, we proceeded to examine whether short stays in halfway houses were an\\n\\naccommodation necessary to address that need. Id.\\n\\n Turning to the case before us, the proper question is whether Schaw’s\\n\\ninability to meet the minimum-income requirement through wages earned is an\\n\\n“effect” of his quadriplegia—whether there is some causal relationship between\\n\\nthe two. Habitat argues that it isn’t—that there’s no causal connection—and that\\n\\neven under the Ninth Circuit’s somewhat similar decision in Giebeler v. M&B\\n\\nAssociates, 343 F.3d 1143 (9th Cir. 2003), Schaw would lose. We’re not so sure.\\n\\nTo briefly explain, in Giebeler, the plaintiff worked for five years as a psychiatric\\n\\ntechnician before being diagnosed with AIDS. Id. at 1145. After his diagnosis, he\\n\\nsought to rent an apartment for $875 per month, but was refused because he\\n\\nreceived only around $1200 per month in disability benefits—much less than the\\n\\nrequisite three times the rent. Id. When the plaintiff’s mother—who made\\n\\nplenty—attempted to sign a lease on her son’s behalf, the apartment management\\n\\nrejected her on the basis that it didn’t allow co-signors. Id. The plaintiff sued, and\\n\\nthe Ninth Circuit agreed that the request—that his financially qualified mother be\\n\\nallowed to rent the apartment on his behalf—was clearly an accommodation within\\n\\nthe meaning of the Act: “Barnett indicates that accommodations may adjust for the\\n\\npractical impact of a disability,” the court explained, and “not only for the\\n\\n\\n 22\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 23 of 31\\n\\n\\nimmediate manifestations of the physical or mental impairment giving rise to the\\n\\ndisability.” Id. at 1150, 1154–55. The court then remanded to the district court for\\n\\nfactual findings as to whether the request was reasonable and would provide him\\n\\nan equal opportunity to use and enjoy a dwelling.\\n\\n To be sure, Giebeler is an easier case. The court there had definitive\\n\\nevidence that the plaintiff was a well-established working professional at the time\\n\\nhe contracted HIV, providing a direct causal link between the impairment and the\\n\\ninability to meet the minimum-income requirement. See id. at 1145. The record\\n\\nhere isn’t so clear concerning whether Schaw would have been able to meet\\n\\nHabitat’s income requirement via wages earned prior to becoming paralyzed—it\\n\\ndoesn’t tell us his pre-accident salary, or whether he lived independently or paid\\n\\nrent anywhere before the accident. Complicating the inquiry, Schaw is classified\\n\\nfor SSDI purposes as an “adult disabled child”—a designation indicating that, as a\\n\\nrecent high-school graduate at the time of his injury, he hadn’t yet reached full\\n\\nearning potential. Accordingly, we’re lacking evidence here of the clear causal\\n\\nconnection present in Giebeler. We just don’t know. 5\\n\\n That said, Schaw’s complaint alleges that his inability to meet Habitat’s\\n\\nminimum-income threshold through W-2 income is a result of his quadriplegia.\\n\\n\\n\\n5\\n For a bit of context, though, a person could exceed Habitat’s minimum-income requirement by\\nworking 40 hours per week at $5.00 per hour, or 20 hours per week at $10.00 per hour.\\n\\n 23\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 24 of 31\\n\\n\\nThe district court didn’t explicitly consider whether that was so; instead, it\\n\\nsummarily determined that the requested accommodation “went solely to\\n\\n[Schaw’s] financial condition—not his disability.” Under our precedent, however,\\n\\nit’s clear that an accommodation addressing an inability to demonstrate wages\\n\\nearned could in some cases be “necessary”—that is, could “alleviate the effects of\\n\\na disability.” Bhogaita, 765 F.3d at 1288. Accordingly, the district court should\\n\\nhave considered here whether Schaw’s inability to demonstrate the minimum\\n\\nrequired income through W-2 wages was an effect of his disability.\\n\\n 2\\n\\n Of course, it’s not enough that an accommodation be “necessary” in the\\n\\nabstract—the Act pairs the word with the object of providing a disabled person an\\n\\n“equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B).\\n\\nEqual, according to one dictionary, means “receiving or entitled to the same\\n\\ntreatment or privileges any other individual has or is entitled to.” Webster’s Third\\n\\nNew International Dictionary 766 (2002). According to another, it denotes\\n\\n“having the same status, rights, or opportunities” and “uniform in application or\\n\\neffect; without discrimination on any grounds.” Oxford Dictionary of English 591\\n\\n(3d ed. 2010).\\n\\n The Supreme Court has clarified that, in this context, our focus should be (in\\n\\nOxford-speak) on uniformity of “effect” rather than “application,” with the end\\n\\n\\n 24\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 25 of 31\\n\\n\\ngoal of ensuring that disabled individuals receive the same opportunities as other\\n\\nindividuals. In U.S. Airways v. Barnett, the Court explained that “[t]he simple fact\\n\\nthat an accommodation would provide a ‘preference’—in the sense that it would\\n\\npermit the worker with a disability to violate a rule that others must obey—cannot,\\n\\nin and of itself, automatically show that the accommodation is not ‘reasonable.’”\\n\\n535 U.S. at 398 (discussing accommodations under the analogous ADA standard).\\n\\nIndeed, the Court explained that accommodations are themselves a type of\\n\\npreference, and that such “preferences will sometimes prove necessary to achieve\\n\\nthe Act’s basic equal opportunity goal.” Id. at 397; see also id. (“By definition any\\n\\nspecial ‘accommodation’ requires . . . different[], i.e., preferential[]” treatment.).\\n\\nAs now-Justice Gorsuch explained during his time on the Tenth Circuit, “under the\\n\\nFHA it is sometimes necessary to dispense with formal equality of treatment in\\n\\norder to advance a more substantial equality of opportunity.” Cinnamon Hills\\n\\nYouth Crisis Ctr., Inc. v. St. George City, 685 F.3d 917, 923 (10th Cir. 2012)\\n\\n(emphasis added).\\n\\n This doesn’t mean, of course, that under the Act a person with a disability is\\n\\nentitled to an accommodation that would place him in a better position to enjoy a\\n\\ndwelling than a member of the general public. See id. (“[W]hile the FHA requires\\n\\naccommodations necessary to ensure the disabled receive the same housing\\n\\nopportunities as everybody else, it does not require more or better opportunities.”).\\n\\n\\n 25\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 26 of 31\\n\\n\\nAs we explained in Schwarz, when accommodations “start addressing problems\\n\\nnot caused by a person’s handicap,” a handicapped person receives not “an\\n\\n‘equal,’ but rather a better opportunity to use and enjoy a dwelling,”—“a\\n\\npreference that the plain language of this statute cannot support.” 544 F.3d at 1226\\n\\n(emphasis added).\\n\\n The district court here determined that “Schaw’s requested accommodation[]\\n\\nwent solely to his financial condition—not his disability,” and, accordingly, that it\\n\\nwould’ve given him “a better opportunity—as opposed to equal opportunity—to\\n\\nuse and enjoy one of Habitat’s dwellings.” But again, we’re not so sure. For one\\n\\nthing, the district court rested its conclusion that the accommodation would\\n\\nprovide a “better” opportunity on the flawed premise that it would remedy only\\n\\nSchaw’s financial status—which, for reasons already explained, may or may not be\\n\\ntrue. Moreover, the district court neglected to acknowledge an important nuance—\\n\\nthat the “financial” aspect of the accommodation here concerns only the form of\\n\\nfunding and not the amount. Schaw didn’t request, for example, that Habitat\\n\\nlower its minimum-income standards or allow him to get away with doing or\\n\\npaying any less than other applicants. He stood ready to pay the monthly mortgage\\n\\nin full and to demonstrate a gross annual income exceeding the minimum required\\n\\nlevel. He requested only that he—an individual allegedly limited to a fixed income\\n\\nas a result, he says, of his disability—be allowed to prove that income in part\\n\\n\\n 26\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 27 of 31\\n\\n\\nthrough familial support or food stamps, putting him in the same position as an\\n\\nable-bodied person who could (theoretically) increase his income through W-2\\n\\nwages. This request—to show an equal income from a different source—could be\\n\\nconstrued as an invitation to “dispense with formal equality of treatment in order to\\n\\nadvance a more substantial equality of opportunity.” Cinnamon Hills, 685 F.3d at\\n\\n923.\\n\\n Of course, as Habitat points out, we could look at this another way: that\\n\\nSchaw seeks an advantage that other applicants don’t enjoy. For instance, if an\\n\\nable-bodied comparator happened to bring in $778 monthly from his job and $100\\n\\nin familial support, he too would have been denied a home. But nothing in the\\n\\nstatute indicates that the fact that a theoretical non-disabled person also could\\n\\npotentially benefit from an accommodation renders that accommodation improper.\\n\\nAgain, “[t]he simple fact that an accommodation would provide a ‘preference’—in\\n\\nthe sense that it would permit the worker with a disability to violate a rule that\\n\\nothers must obey—cannot, in and of itself, automatically show that the\\n\\naccommodation is not ‘reasonable.’” Barnett, 535 U.S. at 398. The inquiry is\\n\\nwhether the requested accommodation would provide a disabled person an\\n\\nopportunity to enjoy a dwelling that would otherwise—due to his disability—elude\\n\\nhim.\\n\\n\\n\\n\\n 27\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 28 of 31\\n\\n\\n * * *\\n\\n Having (hopefully) provided some clarification regarding failure-to-\\n\\naccommodate claims under the Fair Housing Amendments Act, we think it prudent\\n\\nto remand for the district court to consider whether, in light of this opinion, Schaw\\n\\nhas stated a failure-to-accommodate claim—specifically (1) whether Habitat has\\n\\nshown that Schaw’s facially reasonable request would nonetheless result in an\\n\\nundue burden on or fundamental alteration to its program and (2) whether the\\n\\nrequested accommodation is necessary to afford Schaw an equal opportunity to use\\n\\nand enjoy a dwelling. See 42 U.S.C. § 3604(f)(3)(B).\\n\\n III\\n\\n Schaw separately claims that Habitat’s minimum-income requirement has a\\n\\ndisparate impact on SSDI recipients. Here, we agree with the district court—\\n\\nSchaw fails to state a claim.\\n\\n In contrast to a disparate-treatment case in which a plaintiff seeks to\\n\\nestablish that a defendant had “a discriminatory intent or motive,” a plaintiff\\n\\nbringing a disparate-impact claim challenges practices that have a\\n\\n“disproportionately adverse effect” and are otherwise unjustified by a legitimate\\n\\nrationale. Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project,\\n\\nInc., 135 S. Ct. 2507, 2513 (2015) (quotation omitted). A plaintiff can demonstrate\\n\\na discriminatory effect by showing that a policy “makes housing options\\n\\n\\n 28\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 29 of 31\\n\\n\\nsignificantly more restrictive for members of a protected group than for persons\\n\\noutside that group.” Hallmark Developers, Inc. v. Fulton Cty., 466 F.3d 1276,\\n\\n1286 (11th Cir. 2006) (quotations omitted). Evidence demonstrating a “significant\\n\\ndiscriminatory effect suffices to demonstrate a [prima facie] violation of\\n\\nthe Fair Housing Act.” Jackson v. Okaloosa Cty., 21 F.3d 1531, 1543 (11th Cir.\\n\\n1994). That said, it’s not enough to show that a few people are affected by a\\n\\npolicy—rather, the disparity must be substantial enough to raise an inference of\\n\\ncausation. Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1314 (11th Cir. 1994);\\n\\nsee Schwarz, 544 F.3d at 1218 (holding that a district court correctly rejected a\\n\\ndisparate-impact claim because the plaintiff failed to present any relevant\\n\\ncomparative evidence).\\n\\n We needn’t go any farther here, because Schaw failed to provide any\\n\\nevidence of discriminatory effect in the district court. Schaw alleged that Habitat’s\\n\\nminimum-impact requirement has a disparate impact on persons with disabilities\\n\\nbecause the requirements make it impossible for a person receiving SSDI to\\n\\nqualify for a home. In response, Habitat provided evidence of numerous applicants\\n\\nreceiving SSDI who’d been approved for a Habitat home. Rather than provide any\\n\\nevidence to the contrary, Schaw sought to amend his complaint to clarify that the\\n\\nminimum-income requirement has a disparate impact on “SSDI applicants who\\n\\nreceive $847.50 or less in SSDI per month.” Still, though, he offered no evidence.\\n\\n\\n 29\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 30 of 31\\n\\n\\nThis reverse-engineered claim—tailored specifically to Schaw’s particular\\n\\ncircumstances—still fails. Schaw didn’t submit any evidence to prove that\\n\\nHabitat’s requirements disproportionately exclude those receiving SSDI (no matter\\n\\nthe amount) as compared with able-bodied individuals making the same amount of\\n\\nmoney from non-SSDI sources. Accordingly, the district court properly found that\\n\\nSchaw failed to state a disparate-impact claim.\\n\\n IV\\n\\n In sum, we hold (1) that a court must first consider whether a plaintiff has\\n\\nshown that a requested accommodation is facially reasonable and then whether a\\n\\ndefendant has demonstrated that the accommodation would result in an undue\\n\\nburden or fundamental alteration to its program or policy; (2) that a plaintiff’s\\n\\nfinancial state in any particular case could be unrelated, correlated, or causally\\n\\nrelated to his disability and that, in some cases, an accommodation with a financial\\n\\naspect—even one that appears to provide a preference—could be “necessary to\\n\\nafford [an] equal opportunity to use or enjoy a dwelling” within the meaning of the\\n\\nAct; and (3) that Schaw failed to create a genuine issue of material fact as to\\n\\nwhether Habitat’s minimum-income requirement disproportionately excludes SSDI\\n\\nrecipients.\\n\\n Accordingly, we affirm the district court as to Schaw’s disparate-impact\\n\\nclaim and vacate and remand the district court’s order for further proceedings\\n\\n\\n 30\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 31 of 31\\n\\n\\nconsistent with this opinion as to Schaw’s failure-to-accommodate claim—to\\n\\ndetermine, perhaps among other issues, whether Habitat has shown that Schaw’s\\n\\nfacially reasonable accommodation would result in an undue burden or a\\n\\nfundamental alteration to its program and whether Schaw’s financial state is a\\n\\nresult of his disability such that the requested accommodation is “necessary to\\n\\nafford [him an] equal opportunity to use or enjoy a dwelling.”\\n\\n AFFIRMED IN PART AND VACATED AND REMANDED IN PART.\\n\\n\\n\\n\\n 31\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4439165/\", \"author_raw\": \"NEWSOM, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"TJOFLAT"},"judge2":{"kind":"string","value":"MARCUS"},"judge3":{"kind":"string","value":"NEWSOM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"TJOFLAT\": \", Circuit\", \"MARCUS\": \", Circuit\", \"NEWSOM\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4661912/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Albert Schaw v. Habitat for Humanity of Citrus County, Inc.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-09-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-13960 Date Filed: 09/18/2019 Page: 1 of 31\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-13960\n ________________________\n\n D.C. Docket No. 5:16-cv-00311-JSM-PRL\n\n\n\nALBERT SCHAW,\n\n Plaintiff - Appellant,\n\n versus\n\nHABITAT FOR HUMANITY OF CITRUS COUNTY, INC.,\n\n Defendant - Appellee.\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n ________________________\n\n (September 18, 2019)\n\nBefore TJOFLAT, MARCUS, and NEWSOM, Circuit Judges.\n\nNEWSOM, Circuit Judge:\n\n Albert Schaw, a quadriplegic, applied for a home with Habitat for Humanity\n\nof Citrus County. Because his annual social-security-disability income didn’t meet\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 2 of 31\n\n\nHabitat’s minimum-income threshold, Schaw requested an accommodation that\n\nwould allow him to supplement those funds with either food stamps or a notarized\n\nletter memorializing the financial support that he received from his family. When\n\nHabitat refused, Schaw sued under the Fair Housing Amendments Act, 42 U.S.C.\n\n§ 3601 et. seq., which prohibits an entity from discriminating against a disabled\n\nindividual by failing to make “reasonable accommodations” in policies and\n\npractices that are “necessary to afford” the individual an “equal opportunity to use\n\nand enjoy a dwelling.” Id. § 3604(f)(3)(B). Schaw separately alleged that\n\nHabitat’s minimum-income requirement has a disparate impact on disabled\n\nindividuals receiving social-security-disability income.\n\n The district court granted Habitat summary judgment on the basis that\n\nSchaw’s requested accommodation wasn’t “necessary” within the meaning of the\n\nAct, reasoning that it would alleviate only his “financial condition—not his\n\ndisability.” The court also concluded that Schaw had failed to state a disparate-\n\nimpact claim. After careful review, we conclude that while the district court\n\ncorrectly rejected Schaw’s disparate-impact claim, it failed to properly analyze his\n\nfailure-to-accommodate claim. Accordingly, we vacate and remand for further\n\nproceedings consistent with this opinion as to Schaw’s failure-to-accommodate\n\nclaim.\n\n\n\n\n 2\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 3 of 31\n\n\n I\n\n A\n\n Shortly after he graduated from high school, Albert Schaw was in a\n\nwrestling accident that left him completely paralyzed. Schaw is now wheelchair-\n\nbound, and his current abode is ill-suited to accommodate his quadriplegia—it isn’t\n\nwheelchair accessible, and there’s no way for him to close the bathroom door for\n\nprivacy. After seeing a television advertisement for Habitat for Humanity, a\n\nnonprofit that builds new homes for low-income individuals, Schaw decided to\n\napply.\n\n When Schaw met to discuss the application process with Habitat’s Family\n\nServices Director, Rose Strawn, he learned that Habitat imposes a minimum-gross-\n\nannual-income requirement of $10,170, presumably to ensure that potential\n\nhomeowners will be able to pay their mortgages. According to Schaw, his\n\ndisability prevents him from working, so his main source of income is a Social\n\nSecurity Disability Insurance stipend of $778 per month, which equates to a gross\n\nannual income of $9,336. Given the fixed nature of his SSDI, Schaw asked\n\nHabitat to consider one of two other sources of income toward its requirement.\n\nFirst, Schaw receives $194 per month in food stamps. With the food stamps,\n\nSchaw’s gross annual income would be $11,664—enough to qualify. Second,\n\nSchaw receives $100 per month in familial support from his father. With that gift,\n\n\n 3\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 4 of 31\n\n\nhis gross annual income (even excluding the food stamps) would be $10,536—also\n\nenough to qualify. On Strawn’s recommendation, Schaw provided a notarized\n\nletter from his father confirming that he gives Schaw $100 each month.\n\n Habitat’s Board of Directors reviewed Schaw’s application and determined\n\nthat it couldn’t accept either of the two additional sources of income. It wouldn’t\n\nconsider the food stamps because Habitat follows HUD guidelines, which provide\n\nthat food stamps don’t count as income. And it wouldn’t accept the notarized letter\n\nfrom Schaw’s father because the letter wasn’t a legally enforceable guarantee that\n\nthe monthly support would continue. The Board therefore rejected Schaw’s\n\napplication. It did, however, indicate that it would reconsider if the familial\n\nsupport took the form of a trust or an annuity.\n\n Shortly thereafter, Schaw’s attorney, Rebecca Bell, contacted Strawn to\n\nexplain that a trust wouldn’t work because it could jeopardize Schaw’s ability to\n\nreceive government benefits. When Strawn then suggested an annuity, Bell\n\nexplained that she didn’t handle annuities but knew financial advisors who did, and\n\nStrawn took that to mean that Bell would discuss the annuity option with Schaw.\n\nStrawn then sent Schaw a “Letter of Intent” explaining the conditions he needed to\n\nmeet in order to qualify. One of those requirements was that he “[p]rovide\n\ndocumentation for [an] Annuity Plan, (for minimum of five years), as verification\n\nof monthly support provided by [his] Father.” Later, Schaw (through his aunt,\n\n\n 4\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 5 of 31\n\n\nSusan Hale) sent an email to Habitat inquiring as to the status of his application.\n\nGeorge Rusaw, Habitat’s president and CEO, responded that Schaw needed to\n\nprovide “legally codified” evidence of the familial support and that “the notarized\n\nletter from [Schaw’s] father [was] legally insufficient.”\n\n B\n\n Schaw sued Habitat under the Fair Housing Amendments Act, 42 U.S.C.\n\n§ 3604(f), bringing two separate claims. First, he asserted that Habitat violated\n\n§ 3604(f)(3)(B), which requires “reasonable accommodations in rules, policies,\n\npractices, or services, when such accommodations may be necessary to afford such\n\nperson equal opportunity to use and enjoy a dwelling.” Habitat failed to provide a\n\nreasonable accommodation for his disability, Schaw asserted, by refusing to\n\nconsider his food stamps or familial support as income in lieu of wages earned.\n\nSecond, Schaw alleged that Habitat’s minimum-income requirement has a\n\ndisparate impact on applicants receiving SSDI.\n\n After discovery, the parties filed cross-motions for summary judgment on\n\nboth claims. Habitat accepted the facts alleged by Schaw and conceded (1) that\n\nSchaw is disabled within the meaning of the Act, (2) that Schaw asked Habitat to\n\nconsider his food stamps and familial support as supplemental income, and (3) that\n\nHabitat refused to consider the food stamps and the familial support—other than in\n\nthe form of a trust or annuity—as income for purposes of his application. Habitat\n\n\n 5\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 6 of 31\n\n\ndisputed, however, that the accommodation that Schaw requested was “reasonable”\n\nwithin the meaning of the Act.\n\n Shortly after the parties filed their motions, Schaw moved for leave to\n\namend his complaint, seeking to clarify the effect that a trust or annuity would\n\nhave on his government benefits. At the time he filed the complaint, Schaw\n\nbelieved that a trust or annuity would render him ineligible for SSDI benefits. He\n\nthen learned that while a trust or annuity wouldn’t affect his SSDI, it could risk his\n\neligibility for other needs-based assistance, such as Medicare. Because the district\n\ncourt didn’t believe that these changes would affect its analysis as to the relevant\n\nquestions of law, it declined to address the motion for leave to amend before ruling\n\non the summary-judgment motions.\n\n The district court granted Habitat’s motion for summary judgment. The\n\ncourt didn’t address the “reasonable[ness]” of Schaw’s request, concluding instead\n\nthat the accommodation wasn’t “necessary” within the meaning of the Act because\n\nit “went solely to his financial condition—not his disability.” The court also\n\nconcluded that summary judgment was appropriate because Schaw had failed to\n\nattempt in good faith to take advantage of Habitat’s proposed “alternative\n\naccommodation”—namely, to have his father set up familial support in the form of\n\na trust or annuity. As to Schaw’s second claim, the court determined that he had\n\n\n\n\n 6\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 7 of 31\n\n\nfailed to provide any evidence that Habitat’s requirements had a disparate impact\n\non SSDI recipients. This appeal followed.\n\n II\n\n The Fair Housing Amendments Act of 1988 exists “to prohibit\n\ndiscrimination based on handicap and familial status.” Schwarz v. City of Treasure\n\nIsland, 544 F.3d 1201, 1212 (11th Cir. 2008). As relevant here, discrimination\n\nincludes refusing “to make reasonable accommodations in rules, policies,\n\npractices, or services, when such accommodations may be necessary to afford [a\n\ndisabled] person equal opportunity to use and enjoy a dwelling.” 42 U.S.C.\n\n§ 3604(f)(3)(B).\n\n To prevail on a failure-to-accommodate claim, a plaintiff must prove (1) that\n\nhe is disabled, (2) that he requested a “reasonable accommodation,” (3) that the\n\nrequested accommodation was “necessary to afford [him an] equal opportunity to\n\nuse and enjoy the dwelling,” and (4) that the defendant refused to make the\n\nrequested accommodation. Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1225–26\n\n(11th Cir. 2016). The first and last elements are undisputed in this case—no one\n\nhere disputes that Schaw is disabled or that Habitat refused to accommodate his\n\nrequest that it consider his supplemental sources of income. Accordingly, we\n\nfocus on the middle two elements—whether the accommodation that Schaw\n\nrequested was “reasonable” and whether it was “necessary to afford [him] an equal\n\n\n 7\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 8 of 31\n\n\nopportunity to use and enjoy a dwelling.” Id. at 1225. The district court skipped\n\nthe first question and decided the case solely on the basis of the second. But\n\nbecause we find that a genuine issue of material fact exists as to both, we will\n\naddress each in turn.1\n\n A\n\n 1\n\n First, what do we mean when we talk about a “reasonable accommodation”\n\nunder the Act? The reasonableness inquiry considers “whether the requested\n\naccommodation ‘is both efficacious and proportional to the costs to implement it.’”\n\nBhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765 F.3d 1277, 1289 (11th Cir.\n\n2014) (quoting Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d\n\n775, 784 (7th Cir. 2002)). 2 Assessing reasonableness “require[s] a balancing of the\n\nparties’ needs.” Id. An accommodation isn’t reasonable if it requires “a\n\nfundamental alteration in the nature of a program” or imposes “undue financial and\n\nadministrative burdens.” Southeastern Comm. Coll. v. Davis, 442 U.S. 397, 410,\n\n1\n We review de novo the district court’s grant of summary judgment. Loren v. Sasser, 309 F.3d\n1296, 1301 (11th Cir. 2002) (per curiam) (citation omitted). Summary judgment is appropriate\nonly if “the movant shows that there is no genuine dispute as to any material fact and the movant\nis entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).\n2\n Although our case law addressing reasonable accommodations under the Fair Housing\nAmendments Act is rather thin, “Congress imported the reasonable-accommodation concept”\nfrom case law interpreting the Americans with Disabilities Act and the Rehabilitation Act.\nSchwarz, 544 F.3d at 1220. Because “we have applied [these] reasonable-accommodation\nrequirements on numerous occasions,” we can “look to case law” under the ADA and RA for\n“guidance on what is reasonable under the [Fair Housing Amendments Act].” Id.\n\n 8\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 9 of 31\n\n\n412 (1979) (interpreting the term “reasonable accommodation” in the analogous\n\nRehabilitation Act context); see also Schwarz, 544 F.3d at 1220. This Court has\n\nexplained—in imaginative terms—that “[t]he difference between [an]\n\naccommodation that is required and [a] transformation that is not is the difference\n\nbetween saddling a camel and removing its hump.” Lucas v. W.W. Grainger, Inc.,\n\n257 F.3d 1249, 1260 (11th Cir. 2001) (interpreting the term “reasonable\n\naccommodation” in the analogous Americans with Disabilities Act context).\n\n A plaintiff carries the initial burden of showing that his proposed\n\naccommodation is reasonable; however, on a showing of a facially reasonable\n\nrequest, it’s up to the defendant to demonstrate why the requested accommodation\n\nwould cause undue hardship. U.S. Airways v. Barnett, 535 U.S. 391, 401–02\n\n(2002).3 The Supreme Court has explained that “a plaintiff/employee (to defeat a\n\ndefendant/employer’s motion for summary judgment) need only show that an\n\n‘accommodation’ seems reasonable on its face, i.e., ordinarily or in the run of\n\ncases.” Id. at 401 (citation omitted). This doesn’t necessarily mean that a\n\ndefendant is required “to accommodate a [plaintiff] in any manner in which that\n\n\n3\n There is, of course, some overlap between these inquiries. But “[t]hat the evidence probative of\nthe issue of whether an accommodation for the [plaintiff] is reasonable will often be similar (or\nidentical) to the evidence probative of the issue whether a resulting hardship for the [defendant]\nis undue, does not change the fact that establishing that a reasonable accommodation exists is a\npart of a [FHAA] plaintiff’s case, whereas undue hardship is an affirmative defense to be pled\nand proven by a [FHAA] defendant.” Willis v. Conopco, Inc., 108 F.3d 282, 286 (11th Cir.\n1997).\n\n 9\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 10 of 31\n\n\n[plaintiff] desires.” Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d\n\n1278, 1285 (11th Cir. 1997) (quotation omitted). It does mean, though, that the\n\ninitial threshold presents a relatively low bar. See Willis, 108 F.3d at 286 & n.2\n\n(11th Cir. 1997) (“As a general matter, a reasonable accommodation is one\n\nemploying a method of accommodation that is reasonable in the run of cases . .\n\n. .”) (quoting Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993)); see also Hunt,\n\n814 F.3d at 1226 (assuming that a mother’s request for accommodation was\n\nreasonable when she sought an exception to an apartment complex’s lease-\n\nnonrenewal policy while making arrangements for her disabled son to be placed in\n\noffsite care).\n\n If a plaintiff’s request is facially reasonable, the burden shifts to the\n\ndefendant, who must prove that the accommodation would nonetheless impose an\n\n“undue burden” or result in a “fundamental alteration” of its program. Schwarz,\n\n544 F.3d at 1220. An accommodation requires a “fundamental alteration” if it\n\nwould “eliminate an ‘essential’ aspect of the relevant activity,” id. at 1220–21—or,\n\nif you prefer, would “remov[e] [the camel’s] hump,” Lucas, 257 F.3d at 1260.\n\nWhether a particular aspect of an activity is “essential” will turn on the facts of\n\neach case. Schwarz, 544 F.3d at 1221; see also Staron v. McDonald’s Corp., 51\n\nF.3d 353, 356 (2d Cir. 1995) (“[T]he determination of whether a particular\n\nmodification is ‘reasonable’ involves a fact-specific, case-by-case inquiry that\n\n\n 10\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 11 of 31\n\n\nconsiders, among other factors, the effectiveness of the modification . . . and the\n\ncost to the organization that would implement it.”).\n\n While that may sound a little squishy, we aren’t without guidance in this\n\narea. In Schwarz v. City of Treasure Island, we acknowledged that the Supreme\n\nCourt had determined that the analogous ADA required the PGA Tour to allow a\n\ncontestant to use a golf cart rather than walk during a tournament. 544 F.3d at\n\n1221 (discussing PGA Tour, Inc. v. Martin, 532 U.S. 661, 689 (2001)). While\n\nriding in a golf cart arguably provides an advantage of sorts, the Court explained\n\nthat the Tour’s walking rule was not “an essential rule of competition” but was “at\n\nbest peripheral to the nature of [its] athletic events.” See Martin, 532 U.S. at 689.\n\n Another way to look at the “essential”-ness (or “fundamental”-ness) issue\n\nmight be to ask, “What is the basic purpose of the rule or policy at issue?” In\n\nSchwarz, we considered a request for a variance to allow several halfway houses—\n\nwhich are classified as tourist-dwellings because of their high turnover rates—to\n\noperate, some in a designated single-family residential zone and others in a zone\n\nthat allowed multi-family dwellings. 544 F.3d at 1205–06. In the process of\n\nevaluating the City’s defense, we examined the basic purpose of zoning—“to bring\n\ncomplementary land uses together, while separating incompatible ones.” Id. at\n\n1221. We held that the low-turnover rule embodied in the prohibition on tourist\n\ndwellings went to the basic purpose of the single-family zoning restrictions—to\n\n\n 11\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 12 of 31\n\n\nprovide quiet, safety, and permanence in single-family residential neighborhoods.\n\nId. at 1223. We also concluded, however, that the same rule was not an “essential”\n\naspect of multi-family zones. Id. at 1223–24. Despite the City’s arguments about\n\ntraffic congestion, noise, and other potential problems, we determined that\n\nallowing short-term recovery homes to operate in multi-family zones didn’t effect\n\nthe same kind of “fundamental alteration” that it would in single-family zones. Id.\n\nat 1225. Compare also, e.g., Se. Cmty. Coll., 442 U.S. at 410 (requiring a nursing\n\nschool to waive all clinical requirements for a deaf applicant would fundamentally\n\nalter the nature of the nursing program), with, e.g., Anderson v. City of Blue Ash,\n\n798 F.3d 338, 363 (6th Cir. 2015) (allowing a miniature therapy horse to reside in\n\ndisabled girl’s backyard wouldn’t necessarily fundamentally alter the nature of\n\nsingle-family neighborhoods).\n\n When evaluating whether an accommodation would impose an undue\n\nburden, courts also weigh the respective costs and benefits of the accommodation\n\nto the parties, performing a “balancing of the parties’ needs.” Bhogaita, 765 F.3d\n\nat 1288 (citation omitted). In Oconomowoc Residential Programs v. City of\n\nMilwaukee, the Seventh Circuit evaluated a plaintiff’s request for a variance from a\n\nmunicipal ordinance restricting community living facilities from operating within\n\n2,500 feet of similar facilities. 300 F.3d at 777. The plaintiff demonstrated the\n\nreasonableness of the accommodation by pointing to a shortage of area residential\n\n\n 12\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 13 of 31\n\n\nfacilities for brain-injured individuals and to court orders requiring two individuals\n\nto be transferred to a group home as soon as possible. Id. at 779. Although the\n\nCity pointed to a slew of potential issues in return, including increased traffic and\n\nadverse effects on neighborhood parking, the Court found that none of those\n\ninconveniences could be construed as an undue administrative or financial burden.\n\nId. at 785–87.\n\n Salute v. Stratford Greens Garden Apartments, 136 F.3d 293 (2d Cir. 1998),\n\nis an illustrative decision to the contrary. There, two disabled individuals who\n\nqualified for low-income housing assistance under the federal government’s\n\n“Section 8” program applied for apartments at Stratford Greens. Id. at 296. Both\n\nwere turned away, however, because the apartment manager “d[id] not want to get\n\ninvolved with the federal government and its rules and regulations.” Id. In\n\nresponse, the applicants filed a complaint under the Fair Housing Amendments\n\nAct, alleging that Stratford Greens had discriminated against them by “refusing to\n\nmake ‘reasonable accommodations’ to facilitate the rental.” Id. The Second\n\nCircuit determined, though, that “the burden of participating in the Section 8\n\nprogram” could not be viewed as imposing “only reasonable costs or insubstantial\n\nburdens.” Id. at 301. Requiring an apartment complex to accept Section 8\n\napplicants, the court explained, would impose an undue burden because\n\nparticipation in a federal program “will or may entail” a number of encumbrances,\n\n\n 13\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 14 of 31\n\n\nincluding “financial audits, maintenance requirements, inspection of the premises,\n\nreporting requirements, [and] an increased risk of litigation.” Id. Having to\n\nrework its leasing program to accommodate these numerous requirements, the\n\ncourt concluded, would effect “a fundamental alteration” of the complex’s rental\n\npolicies. Id.\n\n So, what’s the upshot? From these decisions, we glean the following\n\nprinciples. First, a plaintiff need only demonstrate a facially reasonable request—\n\nor one that seems reasonable in “the run of cases.” Willis, 108 F.3d at 286;\n\nBarth, 2 F.3d at 1187. Second, a defendant may then proffer evidence that the\n\nplaintiff’s request would nonetheless cause an undue burden or a fundamental\n\nalteration of its policy or program. Third, in evaluating the evidence, a court may\n\nconsider whether the plaintiff’s requested accommodation would eliminate an\n\n“essential aspect” of the defendant’s policy or program or simply inconvenience it,\n\nkeeping in mind the “basic purpose” of the policy or program at issue, and\n\nweighing the benefits to the plaintiff against the burdens on the defendant.\n\n 2\n\n Back to Schaw. The district court didn’t address whether Schaw’s requested\n\naccommodation was of a type likely to be reasonable in the “run of cases,”\n\npreferring to grant judgment primarily on the ground that any accommodation was\n\nnot, within the meaning of the Act, “necessary to afford [him an] equal opportunity\n\n\n 14\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 15 of 31\n\n\nto use and enjoy a dwelling.” (Much more on necessity below—but\n\nreasonableness first.) Let’s begin, then, by looking at the nature of Schaw’s\n\nrequest: to submit food stamps or familial support in lieu of W-2 income for the\n\npurpose of meeting Habitat’s minimum-income requirement. Recall that Habitat\n\nrequires its program applicants to demonstrate a minimum gross annual income of\n\n$10,170, or $847.50 per month. Schaw receives a gross annual income of $9,336,\n\nor $778 in SSDI per month. He also receives $100 per month in familial support,\n\nincreasing his gross annual income to $10,536. Factoring in his $194 in food\n\nstamps, he brings in a total of $12,864. If Habitat credited either the food stamps\n\nor the familial support, Schaw would meet the minimum-income requirement.\n\n Is Schaw’s request that Habitat accept food stamps or familial support\n\ntoward its minimum-income requirement in lieu of ordinary wages facially\n\n“reasonable”? Seems so to us. To be clear, Schaw didn’t ask Habitat to lower its\n\nminimum-income requirement or to accept any less than usual in terms of payment\n\nor interest. Instead, Schaw—who is unable to work—asked Habitat to accept\n\nproof that he brings in the same amount of money as any other Habitat\n\nhomeowner, but in a different form. This request strikes us as the type of\n\naccommodation that the Supreme Court has deemed at least facially reasonable. It\n\nis more akin, we think, to allowing a golfer to use a cart—completing the essential\n\naspects of the game in a different way—than requiring a nursing program to waive\n\n\n 15\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 16 of 31\n\n\nall clinical requirements—removing the essential aspects of a program. Compare\n\nPGA Tour, 532 U.S. at 689, with Se. Cmty. Coll., 442 U.S. at 410. Rather than\n\nseeking a waiver of a basic requirement of Habitat’s housing program, Schaw asks\n\nto meet those basic requirements in his own way. That seems to us sufficient to\n\nmeet the relatively low facial-reasonableness bar adopted in Barnett. See 535 U.S.\n\nat 401–02.\n\n It’s a separate question, though—one that we decline to decide in the first\n\ninstance—whether Habitat can nonetheless demonstrate “special . . . circumstances\n\nthat demonstrate undue hardship.” Id. at 401–02. Would Schaw’s requested\n\naccommodation modify a core aspect of Habitat’s program (i.e., remove the\n\ncamel’s hump) or merely inconvenience (i.e., saddle) it? The answer depends on\n\nthe basic purpose of the income requirement and the relative benefits and burdens\n\nto the parties of implementing Schaw’s request. The record indicates that Habitat’s\n\nrequirements exist to ensure an applicant’s ability to pay the mortgage. At least as\n\nmatters currently stand, we can’t say that Schaw’s proposal would meaningfully\n\nthwart Habitat’s minimum-income threshold. (Consider that the typical at-will\n\nemployee can’t guarantee an ongoing ability to pay, either.) It’s possible, of\n\ncourse, that on closer inspection it will become clear that the accommodation\n\nwould constitute “a fundamental alteration in the nature” of Habitat’s program in\n\nanother way or impose “undue financial or administrative burdens.” Schwarz, 544\n\n\n 16\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 17 of 31\n\n\nF.3d at 1218, 1220. And it’s also possible that it won’t. Because the record is\n\nsilent as to the likely effect of Schaw’s request, we think it prudent to remand to\n\nallow the district court to determine, in the first instance, whether the\n\naccommodation constitutes an undue burden on or fundamental alteration of\n\nHabitat’s program.\n\n We should clarify one thing before we move on to the “necessity” prong of\n\nSchaw’s claim. Although the record is devoid of evidence pertaining to whether\n\nSchaw’s requested accommodation would impose “undue financial or\n\nadministrative burdens,” the district court held that Habitat was entitled to\n\nsummary judgment because it had provided a sufficient “alternative\n\naccommodation” in suggesting that Schaw’s father set up a trust or an annuity to\n\ndisburse the familial-support funds. 4 The district court suggested, per Walden v.\n\nCenters for Disease Control & Prevention, 669 F.3d 1277, 1294 (11th Cir. 2012),\n\nthat “[o]nce Habitat offered a reasonable accommodation to Mr. Schaw, the burden\n\nshifted to him to make a good faith attempt to accommodate his needs through the\n\nproffered accommodation.” In so holding, the district court erred. In particular, it\n\n4\n What Habitat asks for is essentially a guarantee that Schaw’s income will continue. That’s\nunderstandable enough—Habitat wants assurance that if it risks accepting an alternate form of\nincome, it will continue to be paid. But providing “insurance” in the form of a trust or annuity\ncosts money and takes time, and the record does not reflect that Habitat requires the same level\nof assurance from non-disabled applicants. We also know—or are told—that trust or annuity\npayments could negatively affect Schaw’s other government-based assistance—specifically,\nMedicare costs and premiums from which he is currently exempted. These are facts of the sort\nthat a court might take into consideration when weighing the benefits and burdens to the parties.\n\n 17\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 18 of 31\n\n\ntransposed the proper burden of proof, seemingly confusing the Fair Housing\n\nAmendments Act’s reasonable-accommodation inquiry with a religious-\n\naccommodation inquiry. Whereas Walden suggests that in the religious-\n\naccommodation context “[a]ny reasonable accommodation by the employer is\n\nsufficient to meet its accommodation obligation,” 669 F.3d at 1294 (citation\n\nomitted), Barnett makes clear—as we’ve explained—that when it comes to\n\nreasonable accommodation of a disability, a court at the summary-judgment stage\n\nmust consider first whether the plaintiff’s own requested accommodation “seems\n\nreasonable on its face” before turning to consider a defendant’s objections and\n\ncounterproposals, see 535 U.S. at 401–02. Accordingly, the district court’s\n\nalternative holding, shifting to Schaw the burden of proving a good-faith effort to\n\nmake use of Habitat’s proffered alternative accommodation, was premature. The\n\ncourt should have looked first to the reasonableness of Schaw’s own proposed\n\naccommodation before considering any outside evidence.\n\n B\n\n In addition to showing that he sought a “reasonable accommodation,” a\n\nplaintiff attempting to prove a failure-to-accommodate claim under the Fair\n\nHousing Amendments Act must demonstrate that the requested accommodation\n\nwas “necessary to afford [him an] equal opportunity to use and enjoy a dwelling.”\n\n\n\n\n 18\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 19 of 31\n\n\n42 U.S.C. § 3604(f)(3)(B). For clarity’s sake, we’ll assess the separate-but-related\n\nelements of necessity and equality—and how they apply here—one at a time.\n\n 1\n\n According to our precedent, a “‘necessary’ accommodation is one that\n\nalleviates the effects of a disability.” Bhogaita, 765 F.3d at 1288 (citation\n\nomitted). The Fair Housing Amendments Act defines “handicap” (which our\n\ncaselaw uses interchangeably with the term “disability”) as an impairment that\n\n“substantially limits one or more of a person’s major life activities,” 42 U.S.C.\n\n§ 3602(h), which, according to the implementing regulations, include “walking,\n\nseeing, hearing, speaking, breathing, learning and working,” 24 C.F.R.\n\n§ 100.201(b). So, linking these ideas together, an accommodation is “necessary” if\n\nit “alleviates the effects” of an impairment that limits a person’s ability to, among\n\nother things, walk, see, hear, or work. The district court here granted summary\n\njudgment in Habitat’s favor based primarily on this prong, concluding that,\n\nbecause the requested accommodation “went solely to [Schaw’s] financial\n\ncondition—not his disability,” it wasn’t “necessary” within the meaning of the Act.\n\nWe find this too simplistic an explanation.\n\n Schaw asserts that the “effect[] of [his] disability” relevant to this case,\n\nBhogaita, 765 F.3d at 1288, is his inability to work. Because of this limitation,\n\nSchaw says, his income consists largely of SSDI—a fixed monthly amount.\n\n\n 19\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 20 of 31\n\n\nSchaw contends that because he is unable to work and therefore unable to\n\nsupplement his SSDI himself, he should be granted an accommodation allowing\n\nhim to demonstrate additional income in another form: either his food stamps or a\n\nnotarized letter indicating familial support. The district court, however, strictly\n\nseparated Schaw’s “financial condition” from his “disability,” holding that\n\nfinancially oriented accommodations could not, as a rule, be necessary to alleviate\n\nthe effect of a disability. We will address this issue in two parts: (1) whether an\n\naccommodation can be necessary, within the meaning of the Act, to alleviate the\n\neconomic effects of a disability; and (2) whether Schaw has shown that the\n\nparticular accommodation that he has requested is in fact necessary to alleviate the\n\neffect of his disability.\n\n In concluding that Schaw’s requested accommodation “went solely to his\n\nfinancial condition—not his disability,” and thus wasn’t “necessary” for purposes\n\nof the Act, the district court relied on the Second Circuit’s pronouncement in\n\nSalute v. Stratford Greens Garden Apartments that the Act “addresses the\n\naccommodation of handicaps, not the alleviation of economic disadvantages that\n\nmay be correlated with having handicaps.” 136 F.3d at 301. Not in this Circuit.\n\nAs we explained in Bhogaita v. Altamonte Heights Condominium Association, a\n\n“necessary” accommodation is one that alleviates not “handicaps” per se, but\n\nrather “the effects of” those handicaps. 765 F.3d at 1288. This distinction is\n\n\n 20\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 21 of 31\n\n\nimportant here. Consider, for example, the HUD Guidelines, which list as an\n\nillustrative accommodation an exception to a “no pets” rule for a seeing-eye\n\ndog. See 24 C.F.R. § 100.204(b). In such a case, it’s not the handicap itself, but\n\nrather the effect of the handicap, that is being accommodated. Blindness (the\n\nhandicap) creates an inability to walk around safely (the effect on a major life\n\nactivity) and thus a need for a waiver of the prohibition on pets (the\n\naccommodation). Likewise, we might say, Schaw’s quadriplegia (the handicap)\n\ncreates an inability to work (the effect on a major life activity) and thus a need for\n\na waiver of the usual type-of-income requirement (the accommodation). In both\n\ninstances an accommodation is being provided to alleviate the effects of a\n\ndisability on a major life activity.\n\n Given the specifics of this case, we think it significant that federal law lists\n\n“working” as a major life activity alongside “seeing, hearing, speaking, and\n\nwalking.” 42 U.S.C. § 3602(h); 24 C.F.R. § 100.201(b). It would be odd, then, if\n\nthe Act deemed “necessary” those accommodations that “alleviate[] the effects of”\n\nan inability to see, hear, speak, or walk, but not those that alleviate the effects of an\n\ninability to work. As even the Salute court recognized, “the duty to make\n\nreasonable accommodations is framed by the nature of the particular handicap.”\n\n136 F.3d at 301 (emphasis added). In Schwarz, for instance, we recognized that\n\n“the ‘need’ created by a substance addiction”—the handicap—was “help with\n\n\n 21\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 22 of 31\n\n\nbreaking that addiction and maintaining sobriety.” 544 F.3d at 1227. With that in\n\nmind, we proceeded to examine whether short stays in halfway houses were an\n\naccommodation necessary to address that need. Id.\n\n Turning to the case before us, the proper question is whether Schaw’s\n\ninability to meet the minimum-income requirement through wages earned is an\n\n“effect” of his quadriplegia—whether there is some causal relationship between\n\nthe two. Habitat argues that it isn’t—that there’s no causal connection—and that\n\neven under the Ninth Circuit’s somewhat similar decision in Giebeler v. M&B\n\nAssociates, 343 F.3d 1143 (9th Cir. 2003), Schaw would lose. We’re not so sure.\n\nTo briefly explain, in Giebeler, the plaintiff worked for five years as a psychiatric\n\ntechnician before being diagnosed with AIDS. Id. at 1145. After his diagnosis, he\n\nsought to rent an apartment for $875 per month, but was refused because he\n\nreceived only around $1200 per month in disability benefits—much less than the\n\nrequisite three times the rent. Id. When the plaintiff’s mother—who made\n\nplenty—attempted to sign a lease on her son’s behalf, the apartment management\n\nrejected her on the basis that it didn’t allow co-signors. Id. The plaintiff sued, and\n\nthe Ninth Circuit agreed that the request—that his financially qualified mother be\n\nallowed to rent the apartment on his behalf—was clearly an accommodation within\n\nthe meaning of the Act: “Barnett indicates that accommodations may adjust for the\n\npractical impact of a disability,” the court explained, and “not only for the\n\n\n 22\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 23 of 31\n\n\nimmediate manifestations of the physical or mental impairment giving rise to the\n\ndisability.” Id. at 1150, 1154–55. The court then remanded to the district court for\n\nfactual findings as to whether the request was reasonable and would provide him\n\nan equal opportunity to use and enjoy a dwelling.\n\n To be sure, Giebeler is an easier case. The court there had definitive\n\nevidence that the plaintiff was a well-established working professional at the time\n\nhe contracted HIV, providing a direct causal link between the impairment and the\n\ninability to meet the minimum-income requirement. See id. at 1145. The record\n\nhere isn’t so clear concerning whether Schaw would have been able to meet\n\nHabitat’s income requirement via wages earned prior to becoming paralyzed—it\n\ndoesn’t tell us his pre-accident salary, or whether he lived independently or paid\n\nrent anywhere before the accident. Complicating the inquiry, Schaw is classified\n\nfor SSDI purposes as an “adult disabled child”—a designation indicating that, as a\n\nrecent high-school graduate at the time of his injury, he hadn’t yet reached full\n\nearning potential. Accordingly, we’re lacking evidence here of the clear causal\n\nconnection present in Giebeler. We just don’t know. 5\n\n That said, Schaw’s complaint alleges that his inability to meet Habitat’s\n\nminimum-income threshold through W-2 income is a result of his quadriplegia.\n\n\n\n5\n For a bit of context, though, a person could exceed Habitat’s minimum-income requirement by\nworking 40 hours per week at $5.00 per hour, or 20 hours per week at $10.00 per hour.\n\n 23\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 24 of 31\n\n\nThe district court didn’t explicitly consider whether that was so; instead, it\n\nsummarily determined that the requested accommodation “went solely to\n\n[Schaw’s] financial condition—not his disability.” Under our precedent, however,\n\nit’s clear that an accommodation addressing an inability to demonstrate wages\n\nearned could in some cases be “necessary”—that is, could “alleviate the effects of\n\na disability.” Bhogaita, 765 F.3d at 1288. Accordingly, the district court should\n\nhave considered here whether Schaw’s inability to demonstrate the minimum\n\nrequired income through W-2 wages was an effect of his disability.\n\n 2\n\n Of course, it’s not enough that an accommodation be “necessary” in the\n\nabstract—the Act pairs the word with the object of providing a disabled person an\n\n“equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B).\n\nEqual, according to one dictionary, means “receiving or entitled to the same\n\ntreatment or privileges any other individual has or is entitled to.” Webster’s Third\n\nNew International Dictionary 766 (2002). According to another, it denotes\n\n“having the same status, rights, or opportunities” and “uniform in application or\n\neffect; without discrimination on any grounds.” Oxford Dictionary of English 591\n\n(3d ed. 2010).\n\n The Supreme Court has clarified that, in this context, our focus should be (in\n\nOxford-speak) on uniformity of “effect” rather than “application,” with the end\n\n\n 24\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 25 of 31\n\n\ngoal of ensuring that disabled individuals receive the same opportunities as other\n\nindividuals. In U.S. Airways v. Barnett, the Court explained that “[t]he simple fact\n\nthat an accommodation would provide a ‘preference’—in the sense that it would\n\npermit the worker with a disability to violate a rule that others must obey—cannot,\n\nin and of itself, automatically show that the accommodation is not ‘reasonable.’”\n\n535 U.S. at 398 (discussing accommodations under the analogous ADA standard).\n\nIndeed, the Court explained that accommodations are themselves a type of\n\npreference, and that such “preferences will sometimes prove necessary to achieve\n\nthe Act’s basic equal opportunity goal.” Id. at 397; see also id. (“By definition any\n\nspecial ‘accommodation’ requires . . . different[], i.e., preferential[]” treatment.).\n\nAs now-Justice Gorsuch explained during his time on the Tenth Circuit, “under the\n\nFHA it is sometimes necessary to dispense with formal equality of treatment in\n\norder to advance a more substantial equality of opportunity.” Cinnamon Hills\n\nYouth Crisis Ctr., Inc. v. St. George City, 685 F.3d 917, 923 (10th Cir. 2012)\n\n(emphasis added).\n\n This doesn’t mean, of course, that under the Act a person with a disability is\n\nentitled to an accommodation that would place him in a better position to enjoy a\n\ndwelling than a member of the general public. See id. (“[W]hile the FHA requires\n\naccommodations necessary to ensure the disabled receive the same housing\n\nopportunities as everybody else, it does not require more or better opportunities.”).\n\n\n 25\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 26 of 31\n\n\nAs we explained in Schwarz, when accommodations “start addressing problems\n\nnot caused by a person’s handicap,” a handicapped person receives not “an\n\n‘equal,’ but rather a better opportunity to use and enjoy a dwelling,”—“a\n\npreference that the plain language of this statute cannot support.” 544 F.3d at 1226\n\n(emphasis added).\n\n The district court here determined that “Schaw’s requested accommodation[]\n\nwent solely to his financial condition—not his disability,” and, accordingly, that it\n\nwould’ve given him “a better opportunity—as opposed to equal opportunity—to\n\nuse and enjoy one of Habitat’s dwellings.” But again, we’re not so sure. For one\n\nthing, the district court rested its conclusion that the accommodation would\n\nprovide a “better” opportunity on the flawed premise that it would remedy only\n\nSchaw’s financial status—which, for reasons already explained, may or may not be\n\ntrue. Moreover, the district court neglected to acknowledge an important nuance—\n\nthat the “financial” aspect of the accommodation here concerns only the form of\n\nfunding and not the amount. Schaw didn’t request, for example, that Habitat\n\nlower its minimum-income standards or allow him to get away with doing or\n\npaying any less than other applicants. He stood ready to pay the monthly mortgage\n\nin full and to demonstrate a gross annual income exceeding the minimum required\n\nlevel. He requested only that he—an individual allegedly limited to a fixed income\n\nas a result, he says, of his disability—be allowed to prove that income in part\n\n\n 26\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 27 of 31\n\n\nthrough familial support or food stamps, putting him in the same position as an\n\nable-bodied person who could (theoretically) increase his income through W-2\n\nwages. This request—to show an equal income from a different source—could be\n\nconstrued as an invitation to “dispense with formal equality of treatment in order to\n\nadvance a more substantial equality of opportunity.” Cinnamon Hills, 685 F.3d at\n\n923.\n\n Of course, as Habitat points out, we could look at this another way: that\n\nSchaw seeks an advantage that other applicants don’t enjoy. For instance, if an\n\nable-bodied comparator happened to bring in $778 monthly from his job and $100\n\nin familial support, he too would have been denied a home. But nothing in the\n\nstatute indicates that the fact that a theoretical non-disabled person also could\n\npotentially benefit from an accommodation renders that accommodation improper.\n\nAgain, “[t]he simple fact that an accommodation would provide a ‘preference’—in\n\nthe sense that it would permit the worker with a disability to violate a rule that\n\nothers must obey—cannot, in and of itself, automatically show that the\n\naccommodation is not ‘reasonable.’” Barnett, 535 U.S. at 398. The inquiry is\n\nwhether the requested accommodation would provide a disabled person an\n\nopportunity to enjoy a dwelling that would otherwise—due to his disability—elude\n\nhim.\n\n\n\n\n 27\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 28 of 31\n\n\n * * *\n\n Having (hopefully) provided some clarification regarding failure-to-\n\naccommodate claims under the Fair Housing Amendments Act, we think it prudent\n\nto remand for the district court to consider whether, in light of this opinion, Schaw\n\nhas stated a failure-to-accommodate claim—specifically (1) whether Habitat has\n\nshown that Schaw’s facially reasonable request would nonetheless result in an\n\nundue burden on or fundamental alteration to its program and (2) whether the\n\nrequested accommodation is necessary to afford Schaw an equal opportunity to use\n\nand enjoy a dwelling. See 42 U.S.C. § 3604(f)(3)(B).\n\n III\n\n Schaw separately claims that Habitat’s minimum-income requirement has a\n\ndisparate impact on SSDI recipients. Here, we agree with the district court—\n\nSchaw fails to state a claim.\n\n In contrast to a disparate-treatment case in which a plaintiff seeks to\n\nestablish that a defendant had “a discriminatory intent or motive,” a plaintiff\n\nbringing a disparate-impact claim challenges practices that have a\n\n“disproportionately adverse effect” and are otherwise unjustified by a legitimate\n\nrationale. Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project,\n\nInc., 135 S. Ct. 2507, 2513 (2015) (quotation omitted). A plaintiff can demonstrate\n\na discriminatory effect by showing that a policy “makes housing options\n\n\n 28\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 29 of 31\n\n\nsignificantly more restrictive for members of a protected group than for persons\n\noutside that group.” Hallmark Developers, Inc. v. Fulton Cty., 466 F.3d 1276,\n\n1286 (11th Cir. 2006) (quotations omitted). Evidence demonstrating a “significant\n\ndiscriminatory effect suffices to demonstrate a [prima facie] violation of\n\nthe Fair Housing Act.” Jackson v. Okaloosa Cty., 21 F.3d 1531, 1543 (11th Cir.\n\n1994). That said, it’s not enough to show that a few people are affected by a\n\npolicy—rather, the disparity must be substantial enough to raise an inference of\n\ncausation. Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1314 (11th Cir. 1994);\n\nsee Schwarz, 544 F.3d at 1218 (holding that a district court correctly rejected a\n\ndisparate-impact claim because the plaintiff failed to present any relevant\n\ncomparative evidence).\n\n We needn’t go any farther here, because Schaw failed to provide any\n\nevidence of discriminatory effect in the district court. Schaw alleged that Habitat’s\n\nminimum-impact requirement has a disparate impact on persons with disabilities\n\nbecause the requirements make it impossible for a person receiving SSDI to\n\nqualify for a home. In response, Habitat provided evidence of numerous applicants\n\nreceiving SSDI who’d been approved for a Habitat home. Rather than provide any\n\nevidence to the contrary, Schaw sought to amend his complaint to clarify that the\n\nminimum-income requirement has a disparate impact on “SSDI applicants who\n\nreceive $847.50 or less in SSDI per month.” Still, though, he offered no evidence.\n\n\n 29\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 30 of 31\n\n\nThis reverse-engineered claim—tailored specifically to Schaw’s particular\n\ncircumstances—still fails. Schaw didn’t submit any evidence to prove that\n\nHabitat’s requirements disproportionately exclude those receiving SSDI (no matter\n\nthe amount) as compared with able-bodied individuals making the same amount of\n\nmoney from non-SSDI sources. Accordingly, the district court properly found that\n\nSchaw failed to state a disparate-impact claim.\n\n IV\n\n In sum, we hold (1) that a court must first consider whether a plaintiff has\n\nshown that a requested accommodation is facially reasonable and then whether a\n\ndefendant has demonstrated that the accommodation would result in an undue\n\nburden or fundamental alteration to its program or policy; (2) that a plaintiff’s\n\nfinancial state in any particular case could be unrelated, correlated, or causally\n\nrelated to his disability and that, in some cases, an accommodation with a financial\n\naspect—even one that appears to provide a preference—could be “necessary to\n\nafford [an] equal opportunity to use or enjoy a dwelling” within the meaning of the\n\nAct; and (3) that Schaw failed to create a genuine issue of material fact as to\n\nwhether Habitat’s minimum-income requirement disproportionately excludes SSDI\n\nrecipients.\n\n Accordingly, we affirm the district court as to Schaw’s disparate-impact\n\nclaim and vacate and remand the district court’s order for further proceedings\n\n\n 30\n\f Case: 17-13960 Date Filed: 09/18/2019 Page: 31 of 31\n\n\nconsistent with this opinion as to Schaw’s failure-to-accommodate claim—to\n\ndetermine, perhaps among other issues, whether Habitat has shown that Schaw’s\n\nfacially reasonable accommodation would result in an undue burden or a\n\nfundamental alteration to its program and whether Schaw’s financial state is a\n\nresult of his disability such that the requested accommodation is “necessary to\n\nafford [him an] equal opportunity to use or enjoy a dwelling.”\n\n AFFIRMED IN PART AND VACATED AND REMANDED IN PART.\n\n\n\n\n 31\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Albert Schaw v. Habitat for Humanity of Citrus County, Inc.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-09-18\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-13960 Date Filed: 09/18/2019 Page: 1 of 31\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-13960\\n ________________________\\n\\n D.C. Docket No. 5:16-cv-00311-JSM-PRL\\n\\n\\n\\nALBERT SCHAW,\\n\\n Plaintiff - Appellant,\\n\\n versus\\n\\nHABITAT FOR HUMANITY OF CITRUS COUNTY, INC.,\\n\\n Defendant - Appellee.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\n (September 18, 2019)\\n\\nBefore TJOFLAT, MARCUS, and NEWSOM, Circuit Judges.\\n\\nNEWSOM, Circuit Judge:\\n\\n Albert Schaw, a quadriplegic, applied for a home with Habitat for Humanity\\n\\nof Citrus County. Because his annual social-security-disability income didn’t meet\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 2 of 31\\n\\n\\nHabitat’s minimum-income threshold, Schaw requested an accommodation that\\n\\nwould allow him to supplement those funds with either food stamps or a notarized\\n\\nletter memorializing the financial support that he received from his family. When\\n\\nHabitat refused, Schaw sued under the Fair Housing Amendments Act, 42 U.S.C.\\n\\n§ 3601 et. seq., which prohibits an entity from discriminating against a disabled\\n\\nindividual by failing to make “reasonable accommodations” in policies and\\n\\npractices that are “necessary to afford” the individual an “equal opportunity to use\\n\\nand enjoy a dwelling.” Id. § 3604(f)(3)(B). Schaw separately alleged that\\n\\nHabitat’s minimum-income requirement has a disparate impact on disabled\\n\\nindividuals receiving social-security-disability income.\\n\\n The district court granted Habitat summary judgment on the basis that\\n\\nSchaw’s requested accommodation wasn’t “necessary” within the meaning of the\\n\\nAct, reasoning that it would alleviate only his “financial condition—not his\\n\\ndisability.” The court also concluded that Schaw had failed to state a disparate-\\n\\nimpact claim. After careful review, we conclude that while the district court\\n\\ncorrectly rejected Schaw’s disparate-impact claim, it failed to properly analyze his\\n\\nfailure-to-accommodate claim. Accordingly, we vacate and remand for further\\n\\nproceedings consistent with this opinion as to Schaw’s failure-to-accommodate\\n\\nclaim.\\n\\n\\n\\n\\n 2\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 3 of 31\\n\\n\\n I\\n\\n A\\n\\n Shortly after he graduated from high school, Albert Schaw was in a\\n\\nwrestling accident that left him completely paralyzed. Schaw is now wheelchair-\\n\\nbound, and his current abode is ill-suited to accommodate his quadriplegia—it isn’t\\n\\nwheelchair accessible, and there’s no way for him to close the bathroom door for\\n\\nprivacy. After seeing a television advertisement for Habitat for Humanity, a\\n\\nnonprofit that builds new homes for low-income individuals, Schaw decided to\\n\\napply.\\n\\n When Schaw met to discuss the application process with Habitat’s Family\\n\\nServices Director, Rose Strawn, he learned that Habitat imposes a minimum-gross-\\n\\nannual-income requirement of $10,170, presumably to ensure that potential\\n\\nhomeowners will be able to pay their mortgages. According to Schaw, his\\n\\ndisability prevents him from working, so his main source of income is a Social\\n\\nSecurity Disability Insurance stipend of $778 per month, which equates to a gross\\n\\nannual income of $9,336. Given the fixed nature of his SSDI, Schaw asked\\n\\nHabitat to consider one of two other sources of income toward its requirement.\\n\\nFirst, Schaw receives $194 per month in food stamps. With the food stamps,\\n\\nSchaw’s gross annual income would be $11,664—enough to qualify. Second,\\n\\nSchaw receives $100 per month in familial support from his father. With that gift,\\n\\n\\n 3\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 4 of 31\\n\\n\\nhis gross annual income (even excluding the food stamps) would be $10,536—also\\n\\nenough to qualify. On Strawn’s recommendation, Schaw provided a notarized\\n\\nletter from his father confirming that he gives Schaw $100 each month.\\n\\n Habitat’s Board of Directors reviewed Schaw’s application and determined\\n\\nthat it couldn’t accept either of the two additional sources of income. It wouldn’t\\n\\nconsider the food stamps because Habitat follows HUD guidelines, which provide\\n\\nthat food stamps don’t count as income. And it wouldn’t accept the notarized letter\\n\\nfrom Schaw’s father because the letter wasn’t a legally enforceable guarantee that\\n\\nthe monthly support would continue. The Board therefore rejected Schaw’s\\n\\napplication. It did, however, indicate that it would reconsider if the familial\\n\\nsupport took the form of a trust or an annuity.\\n\\n Shortly thereafter, Schaw’s attorney, Rebecca Bell, contacted Strawn to\\n\\nexplain that a trust wouldn’t work because it could jeopardize Schaw’s ability to\\n\\nreceive government benefits. When Strawn then suggested an annuity, Bell\\n\\nexplained that she didn’t handle annuities but knew financial advisors who did, and\\n\\nStrawn took that to mean that Bell would discuss the annuity option with Schaw.\\n\\nStrawn then sent Schaw a “Letter of Intent” explaining the conditions he needed to\\n\\nmeet in order to qualify. One of those requirements was that he “[p]rovide\\n\\ndocumentation for [an] Annuity Plan, (for minimum of five years), as verification\\n\\nof monthly support provided by [his] Father.” Later, Schaw (through his aunt,\\n\\n\\n 4\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 5 of 31\\n\\n\\nSusan Hale) sent an email to Habitat inquiring as to the status of his application.\\n\\nGeorge Rusaw, Habitat’s president and CEO, responded that Schaw needed to\\n\\nprovide “legally codified” evidence of the familial support and that “the notarized\\n\\nletter from [Schaw’s] father [was] legally insufficient.”\\n\\n B\\n\\n Schaw sued Habitat under the Fair Housing Amendments Act, 42 U.S.C.\\n\\n§ 3604(f), bringing two separate claims. First, he asserted that Habitat violated\\n\\n§ 3604(f)(3)(B), which requires “reasonable accommodations in rules, policies,\\n\\npractices, or services, when such accommodations may be necessary to afford such\\n\\nperson equal opportunity to use and enjoy a dwelling.” Habitat failed to provide a\\n\\nreasonable accommodation for his disability, Schaw asserted, by refusing to\\n\\nconsider his food stamps or familial support as income in lieu of wages earned.\\n\\nSecond, Schaw alleged that Habitat’s minimum-income requirement has a\\n\\ndisparate impact on applicants receiving SSDI.\\n\\n After discovery, the parties filed cross-motions for summary judgment on\\n\\nboth claims. Habitat accepted the facts alleged by Schaw and conceded (1) that\\n\\nSchaw is disabled within the meaning of the Act, (2) that Schaw asked Habitat to\\n\\nconsider his food stamps and familial support as supplemental income, and (3) that\\n\\nHabitat refused to consider the food stamps and the familial support—other than in\\n\\nthe form of a trust or annuity—as income for purposes of his application. Habitat\\n\\n\\n 5\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 6 of 31\\n\\n\\ndisputed, however, that the accommodation that Schaw requested was “reasonable”\\n\\nwithin the meaning of the Act.\\n\\n Shortly after the parties filed their motions, Schaw moved for leave to\\n\\namend his complaint, seeking to clarify the effect that a trust or annuity would\\n\\nhave on his government benefits. At the time he filed the complaint, Schaw\\n\\nbelieved that a trust or annuity would render him ineligible for SSDI benefits. He\\n\\nthen learned that while a trust or annuity wouldn’t affect his SSDI, it could risk his\\n\\neligibility for other needs-based assistance, such as Medicare. Because the district\\n\\ncourt didn’t believe that these changes would affect its analysis as to the relevant\\n\\nquestions of law, it declined to address the motion for leave to amend before ruling\\n\\non the summary-judgment motions.\\n\\n The district court granted Habitat’s motion for summary judgment. The\\n\\ncourt didn’t address the “reasonable[ness]” of Schaw’s request, concluding instead\\n\\nthat the accommodation wasn’t “necessary” within the meaning of the Act because\\n\\nit “went solely to his financial condition—not his disability.” The court also\\n\\nconcluded that summary judgment was appropriate because Schaw had failed to\\n\\nattempt in good faith to take advantage of Habitat’s proposed “alternative\\n\\naccommodation”—namely, to have his father set up familial support in the form of\\n\\na trust or annuity. As to Schaw’s second claim, the court determined that he had\\n\\n\\n\\n\\n 6\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 7 of 31\\n\\n\\nfailed to provide any evidence that Habitat’s requirements had a disparate impact\\n\\non SSDI recipients. This appeal followed.\\n\\n II\\n\\n The Fair Housing Amendments Act of 1988 exists “to prohibit\\n\\ndiscrimination based on handicap and familial status.” Schwarz v. City of Treasure\\n\\nIsland, 544 F.3d 1201, 1212 (11th Cir. 2008). As relevant here, discrimination\\n\\nincludes refusing “to make reasonable accommodations in rules, policies,\\n\\npractices, or services, when such accommodations may be necessary to afford [a\\n\\ndisabled] person equal opportunity to use and enjoy a dwelling.” 42 U.S.C.\\n\\n§ 3604(f)(3)(B).\\n\\n To prevail on a failure-to-accommodate claim, a plaintiff must prove (1) that\\n\\nhe is disabled, (2) that he requested a “reasonable accommodation,” (3) that the\\n\\nrequested accommodation was “necessary to afford [him an] equal opportunity to\\n\\nuse and enjoy the dwelling,” and (4) that the defendant refused to make the\\n\\nrequested accommodation. Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1225–26\\n\\n(11th Cir. 2016). The first and last elements are undisputed in this case—no one\\n\\nhere disputes that Schaw is disabled or that Habitat refused to accommodate his\\n\\nrequest that it consider his supplemental sources of income. Accordingly, we\\n\\nfocus on the middle two elements—whether the accommodation that Schaw\\n\\nrequested was “reasonable” and whether it was “necessary to afford [him] an equal\\n\\n\\n 7\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 8 of 31\\n\\n\\nopportunity to use and enjoy a dwelling.” Id. at 1225. The district court skipped\\n\\nthe first question and decided the case solely on the basis of the second. But\\n\\nbecause we find that a genuine issue of material fact exists as to both, we will\\n\\naddress each in turn.1\\n\\n A\\n\\n 1\\n\\n First, what do we mean when we talk about a “reasonable accommodation”\\n\\nunder the Act? The reasonableness inquiry considers “whether the requested\\n\\naccommodation ‘is both efficacious and proportional to the costs to implement it.’”\\n\\nBhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765 F.3d 1277, 1289 (11th Cir.\\n\\n2014) (quoting Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d\\n\\n775, 784 (7th Cir. 2002)). 2 Assessing reasonableness “require[s] a balancing of the\\n\\nparties’ needs.” Id. An accommodation isn’t reasonable if it requires “a\\n\\nfundamental alteration in the nature of a program” or imposes “undue financial and\\n\\nadministrative burdens.” Southeastern Comm. Coll. v. Davis, 442 U.S. 397, 410,\\n\\n1\\n We review de novo the district court’s grant of summary judgment. Loren v. Sasser, 309 F.3d\\n1296, 1301 (11th Cir. 2002) (per curiam) (citation omitted). Summary judgment is appropriate\\nonly if “the movant shows that there is no genuine dispute as to any material fact and the movant\\nis entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).\\n2\\n Although our case law addressing reasonable accommodations under the Fair Housing\\nAmendments Act is rather thin, “Congress imported the reasonable-accommodation concept”\\nfrom case law interpreting the Americans with Disabilities Act and the Rehabilitation Act.\\nSchwarz, 544 F.3d at 1220. Because “we have applied [these] reasonable-accommodation\\nrequirements on numerous occasions,” we can “look to case law” under the ADA and RA for\\n“guidance on what is reasonable under the [Fair Housing Amendments Act].” Id.\\n\\n 8\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 9 of 31\\n\\n\\n412 (1979) (interpreting the term “reasonable accommodation” in the analogous\\n\\nRehabilitation Act context); see also Schwarz, 544 F.3d at 1220. This Court has\\n\\nexplained—in imaginative terms—that “[t]he difference between [an]\\n\\naccommodation that is required and [a] transformation that is not is the difference\\n\\nbetween saddling a camel and removing its hump.” Lucas v. W.W. Grainger, Inc.,\\n\\n257 F.3d 1249, 1260 (11th Cir. 2001) (interpreting the term “reasonable\\n\\naccommodation” in the analogous Americans with Disabilities Act context).\\n\\n A plaintiff carries the initial burden of showing that his proposed\\n\\naccommodation is reasonable; however, on a showing of a facially reasonable\\n\\nrequest, it’s up to the defendant to demonstrate why the requested accommodation\\n\\nwould cause undue hardship. U.S. Airways v. Barnett, 535 U.S. 391, 401–02\\n\\n(2002).3 The Supreme Court has explained that “a plaintiff/employee (to defeat a\\n\\ndefendant/employer’s motion for summary judgment) need only show that an\\n\\n‘accommodation’ seems reasonable on its face, i.e., ordinarily or in the run of\\n\\ncases.” Id. at 401 (citation omitted). This doesn’t necessarily mean that a\\n\\ndefendant is required “to accommodate a [plaintiff] in any manner in which that\\n\\n\\n3\\n There is, of course, some overlap between these inquiries. But “[t]hat the evidence probative of\\nthe issue of whether an accommodation for the [plaintiff] is reasonable will often be similar (or\\nidentical) to the evidence probative of the issue whether a resulting hardship for the [defendant]\\nis undue, does not change the fact that establishing that a reasonable accommodation exists is a\\npart of a [FHAA] plaintiff’s case, whereas undue hardship is an affirmative defense to be pled\\nand proven by a [FHAA] defendant.” Willis v. Conopco, Inc., 108 F.3d 282, 286 (11th Cir.\\n1997).\\n\\n 9\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 10 of 31\\n\\n\\n[plaintiff] desires.” Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d\\n\\n1278, 1285 (11th Cir. 1997) (quotation omitted). It does mean, though, that the\\n\\ninitial threshold presents a relatively low bar. See Willis, 108 F.3d at 286 & n.2\\n\\n(11th Cir. 1997) (“As a general matter, a reasonable accommodation is one\\n\\nemploying a method of accommodation that is reasonable in the run of cases . .\\n\\n. .”) (quoting Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993)); see also Hunt,\\n\\n814 F.3d at 1226 (assuming that a mother’s request for accommodation was\\n\\nreasonable when she sought an exception to an apartment complex’s lease-\\n\\nnonrenewal policy while making arrangements for her disabled son to be placed in\\n\\noffsite care).\\n\\n If a plaintiff’s request is facially reasonable, the burden shifts to the\\n\\ndefendant, who must prove that the accommodation would nonetheless impose an\\n\\n“undue burden” or result in a “fundamental alteration” of its program. Schwarz,\\n\\n544 F.3d at 1220. An accommodation requires a “fundamental alteration” if it\\n\\nwould “eliminate an ‘essential’ aspect of the relevant activity,” id. at 1220–21—or,\\n\\nif you prefer, would “remov[e] [the camel’s] hump,” Lucas, 257 F.3d at 1260.\\n\\nWhether a particular aspect of an activity is “essential” will turn on the facts of\\n\\neach case. Schwarz, 544 F.3d at 1221; see also Staron v. McDonald’s Corp., 51\\n\\nF.3d 353, 356 (2d Cir. 1995) (“[T]he determination of whether a particular\\n\\nmodification is ‘reasonable’ involves a fact-specific, case-by-case inquiry that\\n\\n\\n 10\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 11 of 31\\n\\n\\nconsiders, among other factors, the effectiveness of the modification . . . and the\\n\\ncost to the organization that would implement it.”).\\n\\n While that may sound a little squishy, we aren’t without guidance in this\\n\\narea. In Schwarz v. City of Treasure Island, we acknowledged that the Supreme\\n\\nCourt had determined that the analogous ADA required the PGA Tour to allow a\\n\\ncontestant to use a golf cart rather than walk during a tournament. 544 F.3d at\\n\\n1221 (discussing PGA Tour, Inc. v. Martin, 532 U.S. 661, 689 (2001)). While\\n\\nriding in a golf cart arguably provides an advantage of sorts, the Court explained\\n\\nthat the Tour’s walking rule was not “an essential rule of competition” but was “at\\n\\nbest peripheral to the nature of [its] athletic events.” See Martin, 532 U.S. at 689.\\n\\n Another way to look at the “essential”-ness (or “fundamental”-ness) issue\\n\\nmight be to ask, “What is the basic purpose of the rule or policy at issue?” In\\n\\nSchwarz, we considered a request for a variance to allow several halfway houses—\\n\\nwhich are classified as tourist-dwellings because of their high turnover rates—to\\n\\noperate, some in a designated single-family residential zone and others in a zone\\n\\nthat allowed multi-family dwellings. 544 F.3d at 1205–06. In the process of\\n\\nevaluating the City’s defense, we examined the basic purpose of zoning—“to bring\\n\\ncomplementary land uses together, while separating incompatible ones.” Id. at\\n\\n1221. We held that the low-turnover rule embodied in the prohibition on tourist\\n\\ndwellings went to the basic purpose of the single-family zoning restrictions—to\\n\\n\\n 11\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 12 of 31\\n\\n\\nprovide quiet, safety, and permanence in single-family residential neighborhoods.\\n\\nId. at 1223. We also concluded, however, that the same rule was not an “essential”\\n\\naspect of multi-family zones. Id. at 1223–24. Despite the City’s arguments about\\n\\ntraffic congestion, noise, and other potential problems, we determined that\\n\\nallowing short-term recovery homes to operate in multi-family zones didn’t effect\\n\\nthe same kind of “fundamental alteration” that it would in single-family zones. Id.\\n\\nat 1225. Compare also, e.g., Se. Cmty. Coll., 442 U.S. at 410 (requiring a nursing\\n\\nschool to waive all clinical requirements for a deaf applicant would fundamentally\\n\\nalter the nature of the nursing program), with, e.g., Anderson v. City of Blue Ash,\\n\\n798 F.3d 338, 363 (6th Cir. 2015) (allowing a miniature therapy horse to reside in\\n\\ndisabled girl’s backyard wouldn’t necessarily fundamentally alter the nature of\\n\\nsingle-family neighborhoods).\\n\\n When evaluating whether an accommodation would impose an undue\\n\\nburden, courts also weigh the respective costs and benefits of the accommodation\\n\\nto the parties, performing a “balancing of the parties’ needs.” Bhogaita, 765 F.3d\\n\\nat 1288 (citation omitted). In Oconomowoc Residential Programs v. City of\\n\\nMilwaukee, the Seventh Circuit evaluated a plaintiff’s request for a variance from a\\n\\nmunicipal ordinance restricting community living facilities from operating within\\n\\n2,500 feet of similar facilities. 300 F.3d at 777. The plaintiff demonstrated the\\n\\nreasonableness of the accommodation by pointing to a shortage of area residential\\n\\n\\n 12\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 13 of 31\\n\\n\\nfacilities for brain-injured individuals and to court orders requiring two individuals\\n\\nto be transferred to a group home as soon as possible. Id. at 779. Although the\\n\\nCity pointed to a slew of potential issues in return, including increased traffic and\\n\\nadverse effects on neighborhood parking, the Court found that none of those\\n\\ninconveniences could be construed as an undue administrative or financial burden.\\n\\nId. at 785–87.\\n\\n Salute v. Stratford Greens Garden Apartments, 136 F.3d 293 (2d Cir. 1998),\\n\\nis an illustrative decision to the contrary. There, two disabled individuals who\\n\\nqualified for low-income housing assistance under the federal government’s\\n\\n“Section 8” program applied for apartments at Stratford Greens. Id. at 296. Both\\n\\nwere turned away, however, because the apartment manager “d[id] not want to get\\n\\ninvolved with the federal government and its rules and regulations.” Id. In\\n\\nresponse, the applicants filed a complaint under the Fair Housing Amendments\\n\\nAct, alleging that Stratford Greens had discriminated against them by “refusing to\\n\\nmake ‘reasonable accommodations’ to facilitate the rental.” Id. The Second\\n\\nCircuit determined, though, that “the burden of participating in the Section 8\\n\\nprogram” could not be viewed as imposing “only reasonable costs or insubstantial\\n\\nburdens.” Id. at 301. Requiring an apartment complex to accept Section 8\\n\\napplicants, the court explained, would impose an undue burden because\\n\\nparticipation in a federal program “will or may entail” a number of encumbrances,\\n\\n\\n 13\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 14 of 31\\n\\n\\nincluding “financial audits, maintenance requirements, inspection of the premises,\\n\\nreporting requirements, [and] an increased risk of litigation.” Id. Having to\\n\\nrework its leasing program to accommodate these numerous requirements, the\\n\\ncourt concluded, would effect “a fundamental alteration” of the complex’s rental\\n\\npolicies. Id.\\n\\n So, what’s the upshot? From these decisions, we glean the following\\n\\nprinciples. First, a plaintiff need only demonstrate a facially reasonable request—\\n\\nor one that seems reasonable in “the run of cases.” Willis, 108 F.3d at 286;\\n\\nBarth, 2 F.3d at 1187. Second, a defendant may then proffer evidence that the\\n\\nplaintiff’s request would nonetheless cause an undue burden or a fundamental\\n\\nalteration of its policy or program. Third, in evaluating the evidence, a court may\\n\\nconsider whether the plaintiff’s requested accommodation would eliminate an\\n\\n“essential aspect” of the defendant’s policy or program or simply inconvenience it,\\n\\nkeeping in mind the “basic purpose” of the policy or program at issue, and\\n\\nweighing the benefits to the plaintiff against the burdens on the defendant.\\n\\n 2\\n\\n Back to Schaw. The district court didn’t address whether Schaw’s requested\\n\\naccommodation was of a type likely to be reasonable in the “run of cases,”\\n\\npreferring to grant judgment primarily on the ground that any accommodation was\\n\\nnot, within the meaning of the Act, “necessary to afford [him an] equal opportunity\\n\\n\\n 14\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 15 of 31\\n\\n\\nto use and enjoy a dwelling.” (Much more on necessity below—but\\n\\nreasonableness first.) Let’s begin, then, by looking at the nature of Schaw’s\\n\\nrequest: to submit food stamps or familial support in lieu of W-2 income for the\\n\\npurpose of meeting Habitat’s minimum-income requirement. Recall that Habitat\\n\\nrequires its program applicants to demonstrate a minimum gross annual income of\\n\\n$10,170, or $847.50 per month. Schaw receives a gross annual income of $9,336,\\n\\nor $778 in SSDI per month. He also receives $100 per month in familial support,\\n\\nincreasing his gross annual income to $10,536. Factoring in his $194 in food\\n\\nstamps, he brings in a total of $12,864. If Habitat credited either the food stamps\\n\\nor the familial support, Schaw would meet the minimum-income requirement.\\n\\n Is Schaw’s request that Habitat accept food stamps or familial support\\n\\ntoward its minimum-income requirement in lieu of ordinary wages facially\\n\\n“reasonable”? Seems so to us. To be clear, Schaw didn’t ask Habitat to lower its\\n\\nminimum-income requirement or to accept any less than usual in terms of payment\\n\\nor interest. Instead, Schaw—who is unable to work—asked Habitat to accept\\n\\nproof that he brings in the same amount of money as any other Habitat\\n\\nhomeowner, but in a different form. This request strikes us as the type of\\n\\naccommodation that the Supreme Court has deemed at least facially reasonable. It\\n\\nis more akin, we think, to allowing a golfer to use a cart—completing the essential\\n\\naspects of the game in a different way—than requiring a nursing program to waive\\n\\n\\n 15\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 16 of 31\\n\\n\\nall clinical requirements—removing the essential aspects of a program. Compare\\n\\nPGA Tour, 532 U.S. at 689, with Se. Cmty. Coll., 442 U.S. at 410. Rather than\\n\\nseeking a waiver of a basic requirement of Habitat’s housing program, Schaw asks\\n\\nto meet those basic requirements in his own way. That seems to us sufficient to\\n\\nmeet the relatively low facial-reasonableness bar adopted in Barnett. See 535 U.S.\\n\\nat 401–02.\\n\\n It’s a separate question, though—one that we decline to decide in the first\\n\\ninstance—whether Habitat can nonetheless demonstrate “special . . . circumstances\\n\\nthat demonstrate undue hardship.” Id. at 401–02. Would Schaw’s requested\\n\\naccommodation modify a core aspect of Habitat’s program (i.e., remove the\\n\\ncamel’s hump) or merely inconvenience (i.e., saddle) it? The answer depends on\\n\\nthe basic purpose of the income requirement and the relative benefits and burdens\\n\\nto the parties of implementing Schaw’s request. The record indicates that Habitat’s\\n\\nrequirements exist to ensure an applicant’s ability to pay the mortgage. At least as\\n\\nmatters currently stand, we can’t say that Schaw’s proposal would meaningfully\\n\\nthwart Habitat’s minimum-income threshold. (Consider that the typical at-will\\n\\nemployee can’t guarantee an ongoing ability to pay, either.) It’s possible, of\\n\\ncourse, that on closer inspection it will become clear that the accommodation\\n\\nwould constitute “a fundamental alteration in the nature” of Habitat’s program in\\n\\nanother way or impose “undue financial or administrative burdens.” Schwarz, 544\\n\\n\\n 16\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 17 of 31\\n\\n\\nF.3d at 1218, 1220. And it’s also possible that it won’t. Because the record is\\n\\nsilent as to the likely effect of Schaw’s request, we think it prudent to remand to\\n\\nallow the district court to determine, in the first instance, whether the\\n\\naccommodation constitutes an undue burden on or fundamental alteration of\\n\\nHabitat’s program.\\n\\n We should clarify one thing before we move on to the “necessity” prong of\\n\\nSchaw’s claim. Although the record is devoid of evidence pertaining to whether\\n\\nSchaw’s requested accommodation would impose “undue financial or\\n\\nadministrative burdens,” the district court held that Habitat was entitled to\\n\\nsummary judgment because it had provided a sufficient “alternative\\n\\naccommodation” in suggesting that Schaw’s father set up a trust or an annuity to\\n\\ndisburse the familial-support funds. 4 The district court suggested, per Walden v.\\n\\nCenters for Disease Control & Prevention, 669 F.3d 1277, 1294 (11th Cir. 2012),\\n\\nthat “[o]nce Habitat offered a reasonable accommodation to Mr. Schaw, the burden\\n\\nshifted to him to make a good faith attempt to accommodate his needs through the\\n\\nproffered accommodation.” In so holding, the district court erred. In particular, it\\n\\n4\\n What Habitat asks for is essentially a guarantee that Schaw’s income will continue. That’s\\nunderstandable enough—Habitat wants assurance that if it risks accepting an alternate form of\\nincome, it will continue to be paid. But providing “insurance” in the form of a trust or annuity\\ncosts money and takes time, and the record does not reflect that Habitat requires the same level\\nof assurance from non-disabled applicants. We also know—or are told—that trust or annuity\\npayments could negatively affect Schaw’s other government-based assistance—specifically,\\nMedicare costs and premiums from which he is currently exempted. These are facts of the sort\\nthat a court might take into consideration when weighing the benefits and burdens to the parties.\\n\\n 17\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 18 of 31\\n\\n\\ntransposed the proper burden of proof, seemingly confusing the Fair Housing\\n\\nAmendments Act’s reasonable-accommodation inquiry with a religious-\\n\\naccommodation inquiry. Whereas Walden suggests that in the religious-\\n\\naccommodation context “[a]ny reasonable accommodation by the employer is\\n\\nsufficient to meet its accommodation obligation,” 669 F.3d at 1294 (citation\\n\\nomitted), Barnett makes clear—as we’ve explained—that when it comes to\\n\\nreasonable accommodation of a disability, a court at the summary-judgment stage\\n\\nmust consider first whether the plaintiff’s own requested accommodation “seems\\n\\nreasonable on its face” before turning to consider a defendant’s objections and\\n\\ncounterproposals, see 535 U.S. at 401–02. Accordingly, the district court’s\\n\\nalternative holding, shifting to Schaw the burden of proving a good-faith effort to\\n\\nmake use of Habitat’s proffered alternative accommodation, was premature. The\\n\\ncourt should have looked first to the reasonableness of Schaw’s own proposed\\n\\naccommodation before considering any outside evidence.\\n\\n B\\n\\n In addition to showing that he sought a “reasonable accommodation,” a\\n\\nplaintiff attempting to prove a failure-to-accommodate claim under the Fair\\n\\nHousing Amendments Act must demonstrate that the requested accommodation\\n\\nwas “necessary to afford [him an] equal opportunity to use and enjoy a dwelling.”\\n\\n\\n\\n\\n 18\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 19 of 31\\n\\n\\n42 U.S.C. § 3604(f)(3)(B). For clarity’s sake, we’ll assess the separate-but-related\\n\\nelements of necessity and equality—and how they apply here—one at a time.\\n\\n 1\\n\\n According to our precedent, a “‘necessary’ accommodation is one that\\n\\nalleviates the effects of a disability.” Bhogaita, 765 F.3d at 1288 (citation\\n\\nomitted). The Fair Housing Amendments Act defines “handicap” (which our\\n\\ncaselaw uses interchangeably with the term “disability”) as an impairment that\\n\\n“substantially limits one or more of a person’s major life activities,” 42 U.S.C.\\n\\n§ 3602(h), which, according to the implementing regulations, include “walking,\\n\\nseeing, hearing, speaking, breathing, learning and working,” 24 C.F.R.\\n\\n§ 100.201(b). So, linking these ideas together, an accommodation is “necessary” if\\n\\nit “alleviates the effects” of an impairment that limits a person’s ability to, among\\n\\nother things, walk, see, hear, or work. The district court here granted summary\\n\\njudgment in Habitat’s favor based primarily on this prong, concluding that,\\n\\nbecause the requested accommodation “went solely to [Schaw’s] financial\\n\\ncondition—not his disability,” it wasn’t “necessary” within the meaning of the Act.\\n\\nWe find this too simplistic an explanation.\\n\\n Schaw asserts that the “effect[] of [his] disability” relevant to this case,\\n\\nBhogaita, 765 F.3d at 1288, is his inability to work. Because of this limitation,\\n\\nSchaw says, his income consists largely of SSDI—a fixed monthly amount.\\n\\n\\n 19\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 20 of 31\\n\\n\\nSchaw contends that because he is unable to work and therefore unable to\\n\\nsupplement his SSDI himself, he should be granted an accommodation allowing\\n\\nhim to demonstrate additional income in another form: either his food stamps or a\\n\\nnotarized letter indicating familial support. The district court, however, strictly\\n\\nseparated Schaw’s “financial condition” from his “disability,” holding that\\n\\nfinancially oriented accommodations could not, as a rule, be necessary to alleviate\\n\\nthe effect of a disability. We will address this issue in two parts: (1) whether an\\n\\naccommodation can be necessary, within the meaning of the Act, to alleviate the\\n\\neconomic effects of a disability; and (2) whether Schaw has shown that the\\n\\nparticular accommodation that he has requested is in fact necessary to alleviate the\\n\\neffect of his disability.\\n\\n In concluding that Schaw’s requested accommodation “went solely to his\\n\\nfinancial condition—not his disability,” and thus wasn’t “necessary” for purposes\\n\\nof the Act, the district court relied on the Second Circuit’s pronouncement in\\n\\nSalute v. Stratford Greens Garden Apartments that the Act “addresses the\\n\\naccommodation of handicaps, not the alleviation of economic disadvantages that\\n\\nmay be correlated with having handicaps.” 136 F.3d at 301. Not in this Circuit.\\n\\nAs we explained in Bhogaita v. Altamonte Heights Condominium Association, a\\n\\n“necessary” accommodation is one that alleviates not “handicaps” per se, but\\n\\nrather “the effects of” those handicaps. 765 F.3d at 1288. This distinction is\\n\\n\\n 20\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 21 of 31\\n\\n\\nimportant here. Consider, for example, the HUD Guidelines, which list as an\\n\\nillustrative accommodation an exception to a “no pets” rule for a seeing-eye\\n\\ndog. See 24 C.F.R. § 100.204(b). In such a case, it’s not the handicap itself, but\\n\\nrather the effect of the handicap, that is being accommodated. Blindness (the\\n\\nhandicap) creates an inability to walk around safely (the effect on a major life\\n\\nactivity) and thus a need for a waiver of the prohibition on pets (the\\n\\naccommodation). Likewise, we might say, Schaw’s quadriplegia (the handicap)\\n\\ncreates an inability to work (the effect on a major life activity) and thus a need for\\n\\na waiver of the usual type-of-income requirement (the accommodation). In both\\n\\ninstances an accommodation is being provided to alleviate the effects of a\\n\\ndisability on a major life activity.\\n\\n Given the specifics of this case, we think it significant that federal law lists\\n\\n“working” as a major life activity alongside “seeing, hearing, speaking, and\\n\\nwalking.” 42 U.S.C. § 3602(h); 24 C.F.R. § 100.201(b). It would be odd, then, if\\n\\nthe Act deemed “necessary” those accommodations that “alleviate[] the effects of”\\n\\nan inability to see, hear, speak, or walk, but not those that alleviate the effects of an\\n\\ninability to work. As even the Salute court recognized, “the duty to make\\n\\nreasonable accommodations is framed by the nature of the particular handicap.”\\n\\n136 F.3d at 301 (emphasis added). In Schwarz, for instance, we recognized that\\n\\n“the ‘need’ created by a substance addiction”—the handicap—was “help with\\n\\n\\n 21\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 22 of 31\\n\\n\\nbreaking that addiction and maintaining sobriety.” 544 F.3d at 1227. With that in\\n\\nmind, we proceeded to examine whether short stays in halfway houses were an\\n\\naccommodation necessary to address that need. Id.\\n\\n Turning to the case before us, the proper question is whether Schaw’s\\n\\ninability to meet the minimum-income requirement through wages earned is an\\n\\n“effect” of his quadriplegia—whether there is some causal relationship between\\n\\nthe two. Habitat argues that it isn’t—that there’s no causal connection—and that\\n\\neven under the Ninth Circuit’s somewhat similar decision in Giebeler v. M&B\\n\\nAssociates, 343 F.3d 1143 (9th Cir. 2003), Schaw would lose. We’re not so sure.\\n\\nTo briefly explain, in Giebeler, the plaintiff worked for five years as a psychiatric\\n\\ntechnician before being diagnosed with AIDS. Id. at 1145. After his diagnosis, he\\n\\nsought to rent an apartment for $875 per month, but was refused because he\\n\\nreceived only around $1200 per month in disability benefits—much less than the\\n\\nrequisite three times the rent. Id. When the plaintiff’s mother—who made\\n\\nplenty—attempted to sign a lease on her son’s behalf, the apartment management\\n\\nrejected her on the basis that it didn’t allow co-signors. Id. The plaintiff sued, and\\n\\nthe Ninth Circuit agreed that the request—that his financially qualified mother be\\n\\nallowed to rent the apartment on his behalf—was clearly an accommodation within\\n\\nthe meaning of the Act: “Barnett indicates that accommodations may adjust for the\\n\\npractical impact of a disability,” the court explained, and “not only for the\\n\\n\\n 22\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 23 of 31\\n\\n\\nimmediate manifestations of the physical or mental impairment giving rise to the\\n\\ndisability.” Id. at 1150, 1154–55. The court then remanded to the district court for\\n\\nfactual findings as to whether the request was reasonable and would provide him\\n\\nan equal opportunity to use and enjoy a dwelling.\\n\\n To be sure, Giebeler is an easier case. The court there had definitive\\n\\nevidence that the plaintiff was a well-established working professional at the time\\n\\nhe contracted HIV, providing a direct causal link between the impairment and the\\n\\ninability to meet the minimum-income requirement. See id. at 1145. The record\\n\\nhere isn’t so clear concerning whether Schaw would have been able to meet\\n\\nHabitat’s income requirement via wages earned prior to becoming paralyzed—it\\n\\ndoesn’t tell us his pre-accident salary, or whether he lived independently or paid\\n\\nrent anywhere before the accident. Complicating the inquiry, Schaw is classified\\n\\nfor SSDI purposes as an “adult disabled child”—a designation indicating that, as a\\n\\nrecent high-school graduate at the time of his injury, he hadn’t yet reached full\\n\\nearning potential. Accordingly, we’re lacking evidence here of the clear causal\\n\\nconnection present in Giebeler. We just don’t know. 5\\n\\n That said, Schaw’s complaint alleges that his inability to meet Habitat’s\\n\\nminimum-income threshold through W-2 income is a result of his quadriplegia.\\n\\n\\n\\n5\\n For a bit of context, though, a person could exceed Habitat’s minimum-income requirement by\\nworking 40 hours per week at $5.00 per hour, or 20 hours per week at $10.00 per hour.\\n\\n 23\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 24 of 31\\n\\n\\nThe district court didn’t explicitly consider whether that was so; instead, it\\n\\nsummarily determined that the requested accommodation “went solely to\\n\\n[Schaw’s] financial condition—not his disability.” Under our precedent, however,\\n\\nit’s clear that an accommodation addressing an inability to demonstrate wages\\n\\nearned could in some cases be “necessary”—that is, could “alleviate the effects of\\n\\na disability.” Bhogaita, 765 F.3d at 1288. Accordingly, the district court should\\n\\nhave considered here whether Schaw’s inability to demonstrate the minimum\\n\\nrequired income through W-2 wages was an effect of his disability.\\n\\n 2\\n\\n Of course, it’s not enough that an accommodation be “necessary” in the\\n\\nabstract—the Act pairs the word with the object of providing a disabled person an\\n\\n“equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B).\\n\\nEqual, according to one dictionary, means “receiving or entitled to the same\\n\\ntreatment or privileges any other individual has or is entitled to.” Webster’s Third\\n\\nNew International Dictionary 766 (2002). According to another, it denotes\\n\\n“having the same status, rights, or opportunities” and “uniform in application or\\n\\neffect; without discrimination on any grounds.” Oxford Dictionary of English 591\\n\\n(3d ed. 2010).\\n\\n The Supreme Court has clarified that, in this context, our focus should be (in\\n\\nOxford-speak) on uniformity of “effect” rather than “application,” with the end\\n\\n\\n 24\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 25 of 31\\n\\n\\ngoal of ensuring that disabled individuals receive the same opportunities as other\\n\\nindividuals. In U.S. Airways v. Barnett, the Court explained that “[t]he simple fact\\n\\nthat an accommodation would provide a ‘preference’—in the sense that it would\\n\\npermit the worker with a disability to violate a rule that others must obey—cannot,\\n\\nin and of itself, automatically show that the accommodation is not ‘reasonable.’”\\n\\n535 U.S. at 398 (discussing accommodations under the analogous ADA standard).\\n\\nIndeed, the Court explained that accommodations are themselves a type of\\n\\npreference, and that such “preferences will sometimes prove necessary to achieve\\n\\nthe Act’s basic equal opportunity goal.” Id. at 397; see also id. (“By definition any\\n\\nspecial ‘accommodation’ requires . . . different[], i.e., preferential[]” treatment.).\\n\\nAs now-Justice Gorsuch explained during his time on the Tenth Circuit, “under the\\n\\nFHA it is sometimes necessary to dispense with formal equality of treatment in\\n\\norder to advance a more substantial equality of opportunity.” Cinnamon Hills\\n\\nYouth Crisis Ctr., Inc. v. St. George City, 685 F.3d 917, 923 (10th Cir. 2012)\\n\\n(emphasis added).\\n\\n This doesn’t mean, of course, that under the Act a person with a disability is\\n\\nentitled to an accommodation that would place him in a better position to enjoy a\\n\\ndwelling than a member of the general public. See id. (“[W]hile the FHA requires\\n\\naccommodations necessary to ensure the disabled receive the same housing\\n\\nopportunities as everybody else, it does not require more or better opportunities.”).\\n\\n\\n 25\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 26 of 31\\n\\n\\nAs we explained in Schwarz, when accommodations “start addressing problems\\n\\nnot caused by a person’s handicap,” a handicapped person receives not “an\\n\\n‘equal,’ but rather a better opportunity to use and enjoy a dwelling,”—“a\\n\\npreference that the plain language of this statute cannot support.” 544 F.3d at 1226\\n\\n(emphasis added).\\n\\n The district court here determined that “Schaw’s requested accommodation[]\\n\\nwent solely to his financial condition—not his disability,” and, accordingly, that it\\n\\nwould’ve given him “a better opportunity—as opposed to equal opportunity—to\\n\\nuse and enjoy one of Habitat’s dwellings.” But again, we’re not so sure. For one\\n\\nthing, the district court rested its conclusion that the accommodation would\\n\\nprovide a “better” opportunity on the flawed premise that it would remedy only\\n\\nSchaw’s financial status—which, for reasons already explained, may or may not be\\n\\ntrue. Moreover, the district court neglected to acknowledge an important nuance—\\n\\nthat the “financial” aspect of the accommodation here concerns only the form of\\n\\nfunding and not the amount. Schaw didn’t request, for example, that Habitat\\n\\nlower its minimum-income standards or allow him to get away with doing or\\n\\npaying any less than other applicants. He stood ready to pay the monthly mortgage\\n\\nin full and to demonstrate a gross annual income exceeding the minimum required\\n\\nlevel. He requested only that he—an individual allegedly limited to a fixed income\\n\\nas a result, he says, of his disability—be allowed to prove that income in part\\n\\n\\n 26\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 27 of 31\\n\\n\\nthrough familial support or food stamps, putting him in the same position as an\\n\\nable-bodied person who could (theoretically) increase his income through W-2\\n\\nwages. This request—to show an equal income from a different source—could be\\n\\nconstrued as an invitation to “dispense with formal equality of treatment in order to\\n\\nadvance a more substantial equality of opportunity.” Cinnamon Hills, 685 F.3d at\\n\\n923.\\n\\n Of course, as Habitat points out, we could look at this another way: that\\n\\nSchaw seeks an advantage that other applicants don’t enjoy. For instance, if an\\n\\nable-bodied comparator happened to bring in $778 monthly from his job and $100\\n\\nin familial support, he too would have been denied a home. But nothing in the\\n\\nstatute indicates that the fact that a theoretical non-disabled person also could\\n\\npotentially benefit from an accommodation renders that accommodation improper.\\n\\nAgain, “[t]he simple fact that an accommodation would provide a ‘preference’—in\\n\\nthe sense that it would permit the worker with a disability to violate a rule that\\n\\nothers must obey—cannot, in and of itself, automatically show that the\\n\\naccommodation is not ‘reasonable.’” Barnett, 535 U.S. at 398. The inquiry is\\n\\nwhether the requested accommodation would provide a disabled person an\\n\\nopportunity to enjoy a dwelling that would otherwise—due to his disability—elude\\n\\nhim.\\n\\n\\n\\n\\n 27\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 28 of 31\\n\\n\\n * * *\\n\\n Having (hopefully) provided some clarification regarding failure-to-\\n\\naccommodate claims under the Fair Housing Amendments Act, we think it prudent\\n\\nto remand for the district court to consider whether, in light of this opinion, Schaw\\n\\nhas stated a failure-to-accommodate claim—specifically (1) whether Habitat has\\n\\nshown that Schaw’s facially reasonable request would nonetheless result in an\\n\\nundue burden on or fundamental alteration to its program and (2) whether the\\n\\nrequested accommodation is necessary to afford Schaw an equal opportunity to use\\n\\nand enjoy a dwelling. See 42 U.S.C. § 3604(f)(3)(B).\\n\\n III\\n\\n Schaw separately claims that Habitat’s minimum-income requirement has a\\n\\ndisparate impact on SSDI recipients. Here, we agree with the district court—\\n\\nSchaw fails to state a claim.\\n\\n In contrast to a disparate-treatment case in which a plaintiff seeks to\\n\\nestablish that a defendant had “a discriminatory intent or motive,” a plaintiff\\n\\nbringing a disparate-impact claim challenges practices that have a\\n\\n“disproportionately adverse effect” and are otherwise unjustified by a legitimate\\n\\nrationale. Tex. Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project,\\n\\nInc., 135 S. Ct. 2507, 2513 (2015) (quotation omitted). A plaintiff can demonstrate\\n\\na discriminatory effect by showing that a policy “makes housing options\\n\\n\\n 28\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 29 of 31\\n\\n\\nsignificantly more restrictive for members of a protected group than for persons\\n\\noutside that group.” Hallmark Developers, Inc. v. Fulton Cty., 466 F.3d 1276,\\n\\n1286 (11th Cir. 2006) (quotations omitted). Evidence demonstrating a “significant\\n\\ndiscriminatory effect suffices to demonstrate a [prima facie] violation of\\n\\nthe Fair Housing Act.” Jackson v. Okaloosa Cty., 21 F.3d 1531, 1543 (11th Cir.\\n\\n1994). That said, it’s not enough to show that a few people are affected by a\\n\\npolicy—rather, the disparity must be substantial enough to raise an inference of\\n\\ncausation. Armstrong v. Flowers Hosp., Inc., 33 F.3d 1308, 1314 (11th Cir. 1994);\\n\\nsee Schwarz, 544 F.3d at 1218 (holding that a district court correctly rejected a\\n\\ndisparate-impact claim because the plaintiff failed to present any relevant\\n\\ncomparative evidence).\\n\\n We needn’t go any farther here, because Schaw failed to provide any\\n\\nevidence of discriminatory effect in the district court. Schaw alleged that Habitat’s\\n\\nminimum-impact requirement has a disparate impact on persons with disabilities\\n\\nbecause the requirements make it impossible for a person receiving SSDI to\\n\\nqualify for a home. In response, Habitat provided evidence of numerous applicants\\n\\nreceiving SSDI who’d been approved for a Habitat home. Rather than provide any\\n\\nevidence to the contrary, Schaw sought to amend his complaint to clarify that the\\n\\nminimum-income requirement has a disparate impact on “SSDI applicants who\\n\\nreceive $847.50 or less in SSDI per month.” Still, though, he offered no evidence.\\n\\n\\n 29\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 30 of 31\\n\\n\\nThis reverse-engineered claim—tailored specifically to Schaw’s particular\\n\\ncircumstances—still fails. Schaw didn’t submit any evidence to prove that\\n\\nHabitat’s requirements disproportionately exclude those receiving SSDI (no matter\\n\\nthe amount) as compared with able-bodied individuals making the same amount of\\n\\nmoney from non-SSDI sources. Accordingly, the district court properly found that\\n\\nSchaw failed to state a disparate-impact claim.\\n\\n IV\\n\\n In sum, we hold (1) that a court must first consider whether a plaintiff has\\n\\nshown that a requested accommodation is facially reasonable and then whether a\\n\\ndefendant has demonstrated that the accommodation would result in an undue\\n\\nburden or fundamental alteration to its program or policy; (2) that a plaintiff’s\\n\\nfinancial state in any particular case could be unrelated, correlated, or causally\\n\\nrelated to his disability and that, in some cases, an accommodation with a financial\\n\\naspect—even one that appears to provide a preference—could be “necessary to\\n\\nafford [an] equal opportunity to use or enjoy a dwelling” within the meaning of the\\n\\nAct; and (3) that Schaw failed to create a genuine issue of material fact as to\\n\\nwhether Habitat’s minimum-income requirement disproportionately excludes SSDI\\n\\nrecipients.\\n\\n Accordingly, we affirm the district court as to Schaw’s disparate-impact\\n\\nclaim and vacate and remand the district court’s order for further proceedings\\n\\n\\n 30\\n\\f Case: 17-13960 Date Filed: 09/18/2019 Page: 31 of 31\\n\\n\\nconsistent with this opinion as to Schaw’s failure-to-accommodate claim—to\\n\\ndetermine, perhaps among other issues, whether Habitat has shown that Schaw’s\\n\\nfacially reasonable accommodation would result in an undue burden or a\\n\\nfundamental alteration to its program and whether Schaw’s financial state is a\\n\\nresult of his disability such that the requested accommodation is “necessary to\\n\\nafford [him an] equal opportunity to use or enjoy a dwelling.”\\n\\n AFFIRMED IN PART AND VACATED AND REMANDED IN PART.\\n\\n\\n\\n\\n 31\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4498,"cells":{"id":{"kind":"number","value":4662007,"string":"4,662,007"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Rayvon Boatman v. Angela Berreto"},"decision_date":{"kind":"string","value":"2019-09-18"},"docket_number":{"kind":"string","value":"19-11605"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before WILLIAM PRYOR, JORDAN, and NEWSOM, Circuit Judges.\", \"parties\": \"\", \"opinions\": [{\"author\": \"NEWSOM, Circuit Judge:\", \"type\": \"010combined\", \"text\": \"Case: 19-11605 Date Filed: 09/18/2019 Page: 1 of 6\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 19-11605\\n ________________________\\n\\nRAYVON BOATMAN,\\n\\n Plaintiff - Appellant,\\n\\n versus\\n\\nANGELA BERRETO,\\nDental Nurse,\\nGEORGE F. NARYSHKIN,\\nDentist,\\nJ. LAMOUR,\\nFacility Medical Director (M.D.),\\nGERALD T. DAVID,\\nD.D.S.,\\nGEO GROUP, INC., et al.,\\n Defendants - Appellees,\\n\\nJOHN DOE,\\nDentist et al.,\\n\\n Defendants.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\f Case: 19-11605 Date Filed: 09/18/2019 Page: 2 of 6\\n\\n\\nBefore WILLIAM PRYOR, JORDAN, and NEWSOM, Circuit Judges.\\n\\nNEWSOM, Circuit Judge:\\n\\n This case is REMANDED, sua sponte, to the district court to determine\\n\\nwhen Rayvon Boatman delivered his pro se notice of appeal to authorities at the\\n\\nFlorida Civil Containment Center (FCCC) for mailing.\\n\\n Boatman’s notice of appeal was filed in the district court on April 25,\\n\\n2019—beyond the 30-day deadline to appeal the district court’s March 20, 2019\\n\\njudgment. See Fed. R. App. P. 4(a)(1)(A). But if Federal Rule of Appellate\\n\\nProcedure 4(c)(1), which is known colloquially as the “prison mailbox rule,”\\n\\napplies to Boatman, his appeal may still be timely. That rule makes a notice of\\n\\nappeal filed by a pro se “inmate” timely “if it is deposited in the institution’s\\n\\ninternal mail system on or before the last day for filing.” Fed. R. App. P. 4(c)(1)\\n\\n(added in 1993).\\n\\n Whether the prison mailbox rule applies to a civilly committed person is a\\n\\nquestion of first impression in this Circuit. Several of our sister circuits have held\\n\\nthat it does. See Brown v. Taylor, 829 F.3d 365, 369 (5th Cir. 2016); Jones v.\\n\\nBlanas, 393 F.3d 918, 926 (9th Cir. 2004); see also Lanahan v. Warden, 656 F.\\n\\nApp’x 22, 23 n.3 (4th Cir. 2016). But see Council v. Nash, 400 F. App’x 680, 682\\n\\n(3d Cir. 2010) (declining to apply the prison mailbox rule to an inmate in a\\n\\nCommunity Correctional Facility in part because he failed to show that the\\n\\n\\n 2\\n\\f Case: 19-11605 Date Filed: 09/18/2019 Page: 3 of 6\\n\\n\\n“relatively lenient policies” of that facility prevented him from ensuring “that his\\n\\nnotice of appeal was timely filed”).\\n\\n We agree with the majority position. By its terms, the text of Rule 4(c)(1)\\n\\n“applies broadly to any ‘inmate confined in an institution.’” Jones, 393 F.3d at\\n\\n926 (quoting Fed. R. App. P. 4(c)). Neither the term “inmate” nor the term\\n\\n“institution” is defined in the Rule, but both have ordinary meanings that include\\n\\nBoatman and his place of confinement. Antonin Scalia & Bryan A. Garner,\\n\\nReading Law: The Interpretation of Legal Texts § 6, at 69 (2012) (“Words are to\\n\\nbe understood in their ordinary, everyday meanings—unless the context indicates\\n\\nthat they bear a technical sense.”). At the time of Rule 4(c)(1)’s adoption,\\n\\n“inmate” was—and indeed still is—defined to mean “[a] person confined to a\\n\\nprison, penitentiary, or the like.” Black’s Law Dictionary 788 (6th ed. 1990)\\n\\n(emphasis added); accord Webster’s Second International Dictionary 1281 (1934)\\n\\n(“[O]ne confined or kept in an institution such as an asylum, prison, or poorhouse.”\\n\\n(emphasis added)); Webster’s Third International Dictionary 1165 (1961) (“[A]\\n\\nperson confined or kept in an institution . . . [such] as an asylum, prison, or\\n\\npoorhouse.” (emphasis added)). 1 And “institution” was—and is—defined to mean\\n\\n“[a]n establishment, especially one of eleemosynary or public character or one\\n\\n\\n1\\n See also Black’s Law Dictionary 791 (7th ed. 1999) (“A person confined in a prison, hospital,\\nor other institution.” (emphasis added)); Black’s Law Dictionary 941 (11th ed. 2019) (“A person\\nconfined in a prison, hospital, or similar institution.” (emphasis added))\\n 3\\n\\f Case: 19-11605 Date Filed: 09/18/2019 Page: 4 of 6\\n\\n\\naffecting a community.” Black’s Law Dictionary 800 (6th ed. 1990); accord\\n\\nWebster’s Second 1288 (“An established society or corporation; an establishment,\\n\\nesp. one of a public character . . .”); Webster’s Third 1171 (“[A]n established\\n\\nsociety or corporation: an establishment or foundation esp. of a public\\n\\ncharacter.”). 2 Civil detainees and civil-detention facilities fit comfortably within\\n\\nthese definitions.\\n\\n Nor does the text of the Rule purport to limit its application to those\\n\\nimprisoned for criminal violations, as is the case in related contexts. See Scalia &\\n\\nGarner, Reading Law § 36, at 225 (“Definition sections and interpretation clauses\\n\\nare to be carefully followed. . . . Individual statutes often contain definition\\n\\nsections giving ordinary words a limited or artificial meaning.”). The Prison\\n\\nLitigation Reform Act, for example, contains an explicit textual limitation. See 42\\n\\nU.S.C. § 1997e(h) (limiting the definition of “prisoner” to a person detained for\\n\\n“violations of criminal law or the terms and conditions of parole, probation,\\n\\npretrial release, or diversionary program”). We therefore conclude that Rule\\n\\n4(c)(1) is best read to apply to anyone “[c]onfined in an [i]nstitution,” whether\\n\\ncivilly or criminally. Fed. R. App. P. 4(c).\\n\\n\\n\\n\\n2\\n See also Black’s Law Dictionary 791 (7th ed.) (“An established organization, esp. one of a\\npubic character, such as a facility for the treatment of mentally disabled persons.”); Black’s Law\\nDictionary 951 (11th ed.) (same)\\n 4\\n\\f Case: 19-11605 Date Filed: 09/18/2019 Page: 5 of 6\\n\\n\\n Moreover, we see no good reason to construe the prison mailbox rule in an\\n\\nartificially narrow manner. Quite the contrary, the same considerations that led the\\n\\nSupreme Court to establish the rule in the first place—before its codification—\\n\\napply in the civil-commitment context. Like those imprisoned for crimes, civilly\\n\\ndetained pro se litigants frequently “cannot take the steps other litigants can take to\\n\\nmonitor the processing of their notices of appeal and to ensure that the court clerk\\n\\nreceives and stamps their notices of appeal before the 30-day deadline.” Houston\\n\\nv. Lack, 487 U.S. 266, 270–71 (1988). Simply by virtue of their confinement, pro\\n\\nse litigants “[c]onfined in an [i]nstitution,” Fed. R. App. P. 4(c), are necessarily\\n\\nless able to ensure their filings’ timeliness. See Brown, 829 F.3d at 369 (quoting\\n\\nHouston, 487 U.S. at 271) (noting that a civil detainee “like the prisoner in\\n\\nHouston—could not ‘personally travel to the courthouse’”).\\n\\n Having concluded that Boatman is entitled to the benefit of the prison\\n\\nmailbox rule, we must still determine whether he has met its requirements. In this\\n\\nCircuit, a pro se inmate-litigant is presumed to have submitted his notice of appeal\\n\\non the day he signed it, absent evidence to the contrary. Washington v. United\\n\\nStates, 243 F.3d 1299, 1301 (11th Cir. 2001) (“[T]he burden is on prison\\n\\nauthorities to prove the date a prisoner delivered his documents to be mailed.”).\\n\\nBoatman signed and dated his notice of appeal on March 26, 2019, well within the\\n\\ndeadline, but the envelope that contained the notice bears an FCCC stamp\\n\\n\\n 5\\n\\f Case: 19-11605 Date Filed: 09/18/2019 Page: 6 of 6\\n\\n\\nindicating that it was delivered for mailing on April 23, 2019. This conflicting\\n\\nevidence creates a factual question to be decided in the first instance by the district\\n\\ncourt. Sanders v. United States, 113 F.3d 184, 186 n.2 (11th Cir. 1997). On\\n\\nremand, the district court should decide whether Boatman delivered his notice of\\n\\nappeal to FCCC authorities for mailing within 30 days from the entry of judgment\\n\\nand then return the supplemented record to this Court for further proceedings.\\n\\n REMANDED WITH INSTRUCTIONS.\\n\\n\\n\\n\\n 6\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4439260/\", \"author_raw\": \"NEWSOM, Circuit Judge:\"}]}"},"judge1":{"kind":"string","value":"WILLIAM PRYOR"},"judge2":{"kind":"string","value":"JORDAN"},"judge3":{"kind":"string","value":"NEWSOM"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"WILLIAM PRYOR\": \", Circuit\", \"JORDAN\": \", Circuit\", \"NEWSOM\": \", Circuit\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4662007/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Rayvon Boatman v. Angela Berreto\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-09-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 19-11605 Date Filed: 09/18/2019 Page: 1 of 6\n\n\n [PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 19-11605\n ________________________\n\nRAYVON BOATMAN,\n\n Plaintiff - Appellant,\n\n versus\n\nANGELA BERRETO,\nDental Nurse,\nGEORGE F. NARYSHKIN,\nDentist,\nJ. LAMOUR,\nFacility Medical Director (M.D.),\nGERALD T. DAVID,\nD.D.S.,\nGEO GROUP, INC., et al.,\n Defendants - Appellees,\n\nJOHN DOE,\nDentist et al.,\n\n Defendants.\n\n ________________________\n\n Appeal from the United States District Court\n for the Middle District of Florida\n ________________________\n\f Case: 19-11605 Date Filed: 09/18/2019 Page: 2 of 6\n\n\nBefore WILLIAM PRYOR, JORDAN, and NEWSOM, Circuit Judges.\n\nNEWSOM, Circuit Judge:\n\n This case is REMANDED, sua sponte, to the district court to determine\n\nwhen Rayvon Boatman delivered his pro se notice of appeal to authorities at the\n\nFlorida Civil Containment Center (FCCC) for mailing.\n\n Boatman’s notice of appeal was filed in the district court on April 25,\n\n2019—beyond the 30-day deadline to appeal the district court’s March 20, 2019\n\njudgment. See Fed. R. App. P. 4(a)(1)(A). But if Federal Rule of Appellate\n\nProcedure 4(c)(1), which is known colloquially as the “prison mailbox rule,”\n\napplies to Boatman, his appeal may still be timely. That rule makes a notice of\n\nappeal filed by a pro se “inmate” timely “if it is deposited in the institution’s\n\ninternal mail system on or before the last day for filing.” Fed. R. App. P. 4(c)(1)\n\n(added in 1993).\n\n Whether the prison mailbox rule applies to a civilly committed person is a\n\nquestion of first impression in this Circuit. Several of our sister circuits have held\n\nthat it does. See Brown v. Taylor, 829 F.3d 365, 369 (5th Cir. 2016); Jones v.\n\nBlanas, 393 F.3d 918, 926 (9th Cir. 2004); see also Lanahan v. Warden, 656 F.\n\nApp’x 22, 23 n.3 (4th Cir. 2016). But see Council v. Nash, 400 F. App’x 680, 682\n\n(3d Cir. 2010) (declining to apply the prison mailbox rule to an inmate in a\n\nCommunity Correctional Facility in part because he failed to show that the\n\n\n 2\n\f Case: 19-11605 Date Filed: 09/18/2019 Page: 3 of 6\n\n\n“relatively lenient policies” of that facility prevented him from ensuring “that his\n\nnotice of appeal was timely filed”).\n\n We agree with the majority position. By its terms, the text of Rule 4(c)(1)\n\n“applies broadly to any ‘inmate confined in an institution.’” Jones, 393 F.3d at\n\n926 (quoting Fed. R. App. P. 4(c)). Neither the term “inmate” nor the term\n\n“institution” is defined in the Rule, but both have ordinary meanings that include\n\nBoatman and his place of confinement. Antonin Scalia & Bryan A. Garner,\n\nReading Law: The Interpretation of Legal Texts § 6, at 69 (2012) (“Words are to\n\nbe understood in their ordinary, everyday meanings—unless the context indicates\n\nthat they bear a technical sense.”). At the time of Rule 4(c)(1)’s adoption,\n\n“inmate” was—and indeed still is—defined to mean “[a] person confined to a\n\nprison, penitentiary, or the like.” Black’s Law Dictionary 788 (6th ed. 1990)\n\n(emphasis added); accord Webster’s Second International Dictionary 1281 (1934)\n\n(“[O]ne confined or kept in an institution such as an asylum, prison, or poorhouse.”\n\n(emphasis added)); Webster’s Third International Dictionary 1165 (1961) (“[A]\n\nperson confined or kept in an institution . . . [such] as an asylum, prison, or\n\npoorhouse.” (emphasis added)). 1 And “institution” was—and is—defined to mean\n\n“[a]n establishment, especially one of eleemosynary or public character or one\n\n\n1\n See also Black’s Law Dictionary 791 (7th ed. 1999) (“A person confined in a prison, hospital,\nor other institution.” (emphasis added)); Black’s Law Dictionary 941 (11th ed. 2019) (“A person\nconfined in a prison, hospital, or similar institution.” (emphasis added))\n 3\n\f Case: 19-11605 Date Filed: 09/18/2019 Page: 4 of 6\n\n\naffecting a community.” Black’s Law Dictionary 800 (6th ed. 1990); accord\n\nWebster’s Second 1288 (“An established society or corporation; an establishment,\n\nesp. one of a public character . . .”); Webster’s Third 1171 (“[A]n established\n\nsociety or corporation: an establishment or foundation esp. of a public\n\ncharacter.”). 2 Civil detainees and civil-detention facilities fit comfortably within\n\nthese definitions.\n\n Nor does the text of the Rule purport to limit its application to those\n\nimprisoned for criminal violations, as is the case in related contexts. See Scalia &\n\nGarner, Reading Law § 36, at 225 (“Definition sections and interpretation clauses\n\nare to be carefully followed. . . . Individual statutes often contain definition\n\nsections giving ordinary words a limited or artificial meaning.”). The Prison\n\nLitigation Reform Act, for example, contains an explicit textual limitation. See 42\n\nU.S.C. § 1997e(h) (limiting the definition of “prisoner” to a person detained for\n\n“violations of criminal law or the terms and conditions of parole, probation,\n\npretrial release, or diversionary program”). We therefore conclude that Rule\n\n4(c)(1) is best read to apply to anyone “[c]onfined in an [i]nstitution,” whether\n\ncivilly or criminally. Fed. R. App. P. 4(c).\n\n\n\n\n2\n See also Black’s Law Dictionary 791 (7th ed.) (“An established organization, esp. one of a\npubic character, such as a facility for the treatment of mentally disabled persons.”); Black’s Law\nDictionary 951 (11th ed.) (same)\n 4\n\f Case: 19-11605 Date Filed: 09/18/2019 Page: 5 of 6\n\n\n Moreover, we see no good reason to construe the prison mailbox rule in an\n\nartificially narrow manner. Quite the contrary, the same considerations that led the\n\nSupreme Court to establish the rule in the first place—before its codification—\n\napply in the civil-commitment context. Like those imprisoned for crimes, civilly\n\ndetained pro se litigants frequently “cannot take the steps other litigants can take to\n\nmonitor the processing of their notices of appeal and to ensure that the court clerk\n\nreceives and stamps their notices of appeal before the 30-day deadline.” Houston\n\nv. Lack, 487 U.S. 266, 270–71 (1988). Simply by virtue of their confinement, pro\n\nse litigants “[c]onfined in an [i]nstitution,” Fed. R. App. P. 4(c), are necessarily\n\nless able to ensure their filings’ timeliness. See Brown, 829 F.3d at 369 (quoting\n\nHouston, 487 U.S. at 271) (noting that a civil detainee “like the prisoner in\n\nHouston—could not ‘personally travel to the courthouse’”).\n\n Having concluded that Boatman is entitled to the benefit of the prison\n\nmailbox rule, we must still determine whether he has met its requirements. In this\n\nCircuit, a pro se inmate-litigant is presumed to have submitted his notice of appeal\n\non the day he signed it, absent evidence to the contrary. Washington v. United\n\nStates, 243 F.3d 1299, 1301 (11th Cir. 2001) (“[T]he burden is on prison\n\nauthorities to prove the date a prisoner delivered his documents to be mailed.”).\n\nBoatman signed and dated his notice of appeal on March 26, 2019, well within the\n\ndeadline, but the envelope that contained the notice bears an FCCC stamp\n\n\n 5\n\f Case: 19-11605 Date Filed: 09/18/2019 Page: 6 of 6\n\n\nindicating that it was delivered for mailing on April 23, 2019. This conflicting\n\nevidence creates a factual question to be decided in the first instance by the district\n\ncourt. Sanders v. United States, 113 F.3d 184, 186 n.2 (11th Cir. 1997). On\n\nremand, the district court should decide whether Boatman delivered his notice of\n\nappeal to FCCC authorities for mailing within 30 days from the entry of judgment\n\nand then return the supplemented record to this Court for further proceedings.\n\n REMANDED WITH INSTRUCTIONS.\n\n\n\n\n 6\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Rayvon Boatman v. Angela Berreto\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-09-18\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 19-11605 Date Filed: 09/18/2019 Page: 1 of 6\\n\\n\\n [PUBLISH]\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 19-11605\\n ________________________\\n\\nRAYVON BOATMAN,\\n\\n Plaintiff - Appellant,\\n\\n versus\\n\\nANGELA BERRETO,\\nDental Nurse,\\nGEORGE F. NARYSHKIN,\\nDentist,\\nJ. LAMOUR,\\nFacility Medical Director (M.D.),\\nGERALD T. DAVID,\\nD.D.S.,\\nGEO GROUP, INC., et al.,\\n Defendants - Appellees,\\n\\nJOHN DOE,\\nDentist et al.,\\n\\n Defendants.\\n\\n ________________________\\n\\n Appeal from the United States District Court\\n for the Middle District of Florida\\n ________________________\\n\\f Case: 19-11605 Date Filed: 09/18/2019 Page: 2 of 6\\n\\n\\nBefore WILLIAM PRYOR, JORDAN, and NEWSOM, Circuit Judges.\\n\\nNEWSOM, Circuit Judge:\\n\\n This case is REMANDED, sua sponte, to the district court to determine\\n\\nwhen Rayvon Boatman delivered his pro se notice of appeal to authorities at the\\n\\nFlorida Civil Containment Center (FCCC) for mailing.\\n\\n Boatman’s notice of appeal was filed in the district court on April 25,\\n\\n2019—beyond the 30-day deadline to appeal the district court’s March 20, 2019\\n\\njudgment. See Fed. R. App. P. 4(a)(1)(A). But if Federal Rule of Appellate\\n\\nProcedure 4(c)(1), which is known colloquially as the “prison mailbox rule,”\\n\\napplies to Boatman, his appeal may still be timely. That rule makes a notice of\\n\\nappeal filed by a pro se “inmate” timely “if it is deposited in the institution’s\\n\\ninternal mail system on or before the last day for filing.” Fed. R. App. P. 4(c)(1)\\n\\n(added in 1993).\\n\\n Whether the prison mailbox rule applies to a civilly committed person is a\\n\\nquestion of first impression in this Circuit. Several of our sister circuits have held\\n\\nthat it does. See Brown v. Taylor, 829 F.3d 365, 369 (5th Cir. 2016); Jones v.\\n\\nBlanas, 393 F.3d 918, 926 (9th Cir. 2004); see also Lanahan v. Warden, 656 F.\\n\\nApp’x 22, 23 n.3 (4th Cir. 2016). But see Council v. Nash, 400 F. App’x 680, 682\\n\\n(3d Cir. 2010) (declining to apply the prison mailbox rule to an inmate in a\\n\\nCommunity Correctional Facility in part because he failed to show that the\\n\\n\\n 2\\n\\f Case: 19-11605 Date Filed: 09/18/2019 Page: 3 of 6\\n\\n\\n“relatively lenient policies” of that facility prevented him from ensuring “that his\\n\\nnotice of appeal was timely filed”).\\n\\n We agree with the majority position. By its terms, the text of Rule 4(c)(1)\\n\\n“applies broadly to any ‘inmate confined in an institution.’” Jones, 393 F.3d at\\n\\n926 (quoting Fed. R. App. P. 4(c)). Neither the term “inmate” nor the term\\n\\n“institution” is defined in the Rule, but both have ordinary meanings that include\\n\\nBoatman and his place of confinement. Antonin Scalia & Bryan A. Garner,\\n\\nReading Law: The Interpretation of Legal Texts § 6, at 69 (2012) (“Words are to\\n\\nbe understood in their ordinary, everyday meanings—unless the context indicates\\n\\nthat they bear a technical sense.”). At the time of Rule 4(c)(1)’s adoption,\\n\\n“inmate” was—and indeed still is—defined to mean “[a] person confined to a\\n\\nprison, penitentiary, or the like.” Black’s Law Dictionary 788 (6th ed. 1990)\\n\\n(emphasis added); accord Webster’s Second International Dictionary 1281 (1934)\\n\\n(“[O]ne confined or kept in an institution such as an asylum, prison, or poorhouse.”\\n\\n(emphasis added)); Webster’s Third International Dictionary 1165 (1961) (“[A]\\n\\nperson confined or kept in an institution . . . [such] as an asylum, prison, or\\n\\npoorhouse.” (emphasis added)). 1 And “institution” was—and is—defined to mean\\n\\n“[a]n establishment, especially one of eleemosynary or public character or one\\n\\n\\n1\\n See also Black’s Law Dictionary 791 (7th ed. 1999) (“A person confined in a prison, hospital,\\nor other institution.” (emphasis added)); Black’s Law Dictionary 941 (11th ed. 2019) (“A person\\nconfined in a prison, hospital, or similar institution.” (emphasis added))\\n 3\\n\\f Case: 19-11605 Date Filed: 09/18/2019 Page: 4 of 6\\n\\n\\naffecting a community.” Black’s Law Dictionary 800 (6th ed. 1990); accord\\n\\nWebster’s Second 1288 (“An established society or corporation; an establishment,\\n\\nesp. one of a public character . . .”); Webster’s Third 1171 (“[A]n established\\n\\nsociety or corporation: an establishment or foundation esp. of a public\\n\\ncharacter.”). 2 Civil detainees and civil-detention facilities fit comfortably within\\n\\nthese definitions.\\n\\n Nor does the text of the Rule purport to limit its application to those\\n\\nimprisoned for criminal violations, as is the case in related contexts. See Scalia &\\n\\nGarner, Reading Law § 36, at 225 (“Definition sections and interpretation clauses\\n\\nare to be carefully followed. . . . Individual statutes often contain definition\\n\\nsections giving ordinary words a limited or artificial meaning.”). The Prison\\n\\nLitigation Reform Act, for example, contains an explicit textual limitation. See 42\\n\\nU.S.C. § 1997e(h) (limiting the definition of “prisoner” to a person detained for\\n\\n“violations of criminal law or the terms and conditions of parole, probation,\\n\\npretrial release, or diversionary program”). We therefore conclude that Rule\\n\\n4(c)(1) is best read to apply to anyone “[c]onfined in an [i]nstitution,” whether\\n\\ncivilly or criminally. Fed. R. App. P. 4(c).\\n\\n\\n\\n\\n2\\n See also Black’s Law Dictionary 791 (7th ed.) (“An established organization, esp. one of a\\npubic character, such as a facility for the treatment of mentally disabled persons.”); Black’s Law\\nDictionary 951 (11th ed.) (same)\\n 4\\n\\f Case: 19-11605 Date Filed: 09/18/2019 Page: 5 of 6\\n\\n\\n Moreover, we see no good reason to construe the prison mailbox rule in an\\n\\nartificially narrow manner. Quite the contrary, the same considerations that led the\\n\\nSupreme Court to establish the rule in the first place—before its codification—\\n\\napply in the civil-commitment context. Like those imprisoned for crimes, civilly\\n\\ndetained pro se litigants frequently “cannot take the steps other litigants can take to\\n\\nmonitor the processing of their notices of appeal and to ensure that the court clerk\\n\\nreceives and stamps their notices of appeal before the 30-day deadline.” Houston\\n\\nv. Lack, 487 U.S. 266, 270–71 (1988). Simply by virtue of their confinement, pro\\n\\nse litigants “[c]onfined in an [i]nstitution,” Fed. R. App. P. 4(c), are necessarily\\n\\nless able to ensure their filings’ timeliness. See Brown, 829 F.3d at 369 (quoting\\n\\nHouston, 487 U.S. at 271) (noting that a civil detainee “like the prisoner in\\n\\nHouston—could not ‘personally travel to the courthouse’”).\\n\\n Having concluded that Boatman is entitled to the benefit of the prison\\n\\nmailbox rule, we must still determine whether he has met its requirements. In this\\n\\nCircuit, a pro se inmate-litigant is presumed to have submitted his notice of appeal\\n\\non the day he signed it, absent evidence to the contrary. Washington v. United\\n\\nStates, 243 F.3d 1299, 1301 (11th Cir. 2001) (“[T]he burden is on prison\\n\\nauthorities to prove the date a prisoner delivered his documents to be mailed.”).\\n\\nBoatman signed and dated his notice of appeal on March 26, 2019, well within the\\n\\ndeadline, but the envelope that contained the notice bears an FCCC stamp\\n\\n\\n 5\\n\\f Case: 19-11605 Date Filed: 09/18/2019 Page: 6 of 6\\n\\n\\nindicating that it was delivered for mailing on April 23, 2019. This conflicting\\n\\nevidence creates a factual question to be decided in the first instance by the district\\n\\ncourt. Sanders v. United States, 113 F.3d 184, 186 n.2 (11th Cir. 1997). On\\n\\nremand, the district court should decide whether Boatman delivered his notice of\\n\\nappeal to FCCC authorities for mailing within 30 days from the entry of judgment\\n\\nand then return the supplemented record to this Court for further proceedings.\\n\\n REMANDED WITH INSTRUCTIONS.\\n\\n\\n\\n\\n 6\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}},{"rowIdx":4499,"cells":{"id":{"kind":"number","value":4662206,"string":"4,662,206"},"name":{"kind":"string","value":""},"name_abbreviation":{"kind":"string","value":"Managed Care Advisory Group, LLC v. Cigna Healthcare, Inc."},"decision_date":{"kind":"string","value":"2019-09-18"},"docket_number":{"kind":"string","value":"17-13761"},"court":{"kind":"string","value":"U.S. Court of Appeals for the Eleventh Circuit"},"casebody":{"kind":"string","value":"{\"judges\": \"Before JILL PRYOR and BRANCH, Circuit Judges, and REEVES,* District Judge.\", \"parties\": \"\", \"opinions\": [{\"author\": \"PER CURIAM\", \"type\": \"010combined\", \"text\": \"Case: 17-13761 Date Filed: 09/18/2019 Page: 1 of 34\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-13761\\n ________________________\\n\\n D.C. Docket No. 1:00-md-01334-FAM\\n\\n\\n\\nMANAGED CARE ADVISORY GROUP, LLC,\\n\\n Plaintiff - Appellee,\\n\\n\\n versus\\n\\n\\nCIGNA HEALTHCARE, INC.,\\n\\n Defendant - Appellant,\\n\\nEPIQ SYSTEMS, INC.,\\nDAVID GARCIA,\\nNEIL MANNING,\\nIMEDECS,\\nMILLENNIUM HEALTHCARE CONSULTING, INC.,\\nMARY FALBO,\\n\\n Interested Parties - Appellants.\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 2 of 34\\n\\n\\n ________________________\\n\\n Appeals from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (September 18, 2019)\\n\\nBefore JILL PRYOR and BRANCH, Circuit Judges, and REEVES,* District\\nJudge.\\n\\nPER CURIAM:\\n\\n Medical providers filed several class action lawsuits against managed care\\n\\ninsurance companies, including CIGNA Healthcare, Inc. (“CIGNA”). These\\n\\nactions alleged that the insurers improperly processed and rejected certain\\n\\nphysicians’ claims for payment. The actions were consolidated into Multidistrict\\n\\nLitigation (“MDL”) before the United States District Court for the Southern\\n\\nDistrict of Florida. The class and CIGNA reached a settlement after extensive\\n\\nlitigation and the district court subsequently approved the parties’ Settlement\\n\\nAgreement.\\n\\n Following the settlement, Managed Care Advisory Group, LLC (“MCAG”),\\n\\nacting on behalf of class members, entered into an arbitration agreement with\\n\\nCIGNA in an attempt to resolve a dispute over a portion of the settlement funds.\\n\\n\\n\\n *\\n The Honorable Danny C. Reeves, United States Chief District Judge for the Eastern\\nDistrict of Kentucky, sitting by designation.\\n\\n 2\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 3 of 34\\n\\n\\nThe Settlement Agreement did not provide for arbitration and MCAG was not a\\n\\nparty to it. Instead, MCAG claimed to represent class members who were parties\\n\\nto the Settlement Agreement. The arbitrator summonsed the settlement claims\\n\\nadministrator and independent review entities (“IREs”) 1 to appear for a live\\n\\nhearing and video conference and to bring with them certain documents. MCAG\\n\\nfiled a motion to enforce the arbitral summonses in the district court approximately\\n\\nthree years after it had closed all proceedings involving the MDL. CIGNA\\n\\nresponded to MCAG’s motion to enforce the arbitral summonses with a motion to\\n\\nstrike the summonses. The district court referred the matter to a magistrate judge\\n\\nwho denied CIGNA’s motion and granted MCAG’s request to enforce the\\n\\nsummonses. CIGNA and the summonsed parties appealed the magistrate judge’s\\n\\ndecision to the district court and, at the district court’s suggestion, CIGNA filed a\\n\\nmotion to enforce the settlement and compel an accounting.\\n\\n The district court affirmed the magistrate judge’s decision, enforcing the\\n\\narbitral summonses, but denied CIGNA’s motion to enforce the Settlement\\n\\nAgreement and compel an accounting stating, “[t]he Arbitrator shall be allowed to\\n\\narbitrate the claims in the manner he sees fit.” After careful review of the record\\n\\n\\n\\n\\n 1\\n The IREs are organizations selected by mutual agreement of counsel for the parties to\\nthe Settlement Agreement. Their role is to review CIGNA’s disposition of insurance claims\\nsubmitted pursuant to the Settlement Agreement.\\n 3\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 4 of 34\\n\\n\\nand with the benefit of oral argument, we reverse enforcement of the arbitral\\n\\nsummonses. Additionally, we reverse and remand the denial of the motion to\\n\\nenforce the Settlement Agreement and compel an accounting to the extent that it\\n\\nrelates to a portion of settlement funds previously paid.\\n\\n I. BACKGROUND\\n\\n Medical providers filed several class actions against managed care insurance\\n\\ncompanies, including CIGNA, starting in 1999. The matters were consolidated\\n\\ninto an MDL proceeding in the United States District Court for the Southern\\n\\nDistrict of Florida in April 2000. MCAG was not a party, class member, or class\\n\\ncounsel in any of the lawsuits consolidated into the MDL, nor was it a party to the\\n\\nMDL itself. The parties later moved for preliminary approval of a settlement, and\\n\\nthe district court granted their request.\\n\\n The district court approved the settlement on January 30, 2004, following a\\n\\nclass action fairness hearing. The court noted, however, that it retained jurisdiction\\n\\nfor “all matters relating to [] the interpretation, administration, and consummation\\n\\nof the Agreement . . . .” The settlement included monetary relief to the class\\n\\nmembers as well as the ability to either (1) participate in a $30,000,000 fund that\\n\\nwould be distributed to class members or (2) seek recovery from an uncapped fund\\n\\nfor claims that were previously denied or reduced. As relevant to this appeal,\\n\\n“Category Two” claims sought recovery from the uncapped fund. To seek\\n 4\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 5 of 34\\n\\n\\ncompensation for Category Two claims, the class members would submit their\\n\\nclaims to the settlement administrator, who would forward them to CIGNA upon\\n\\nverification that the claim was accompanied by sufficient supporting documents.\\n\\nIf CIGNA determined that a claim was not payable, it would be reviewed by the\\n\\nindependent settlement administrator or the IRE (collectively, “the Reviewers”),\\n\\ndepending on the reason for the denial. After evaluating these claims, the\\n\\nReviewers would make a final, independent decision regarding whether the claims\\n\\nshould be paid.\\n\\n Class member Texas Children’s Pediatric Associates (“TCPA”) moved for\\n\\nenforcement of the settlement on July 14, 2005, asserting that CIGNA obstructed\\n\\nthe process for Category Two claims, causing the Reviewers to improperly process\\n\\nclaims. TCPA requested in the motion for enforcement of the settlement that the\\n\\ndistrict court direct CIGNA to pay its claims. However, TCPA subsequently\\n\\nwithdrew its motion on November 16, 2005, noting that MCAG and CIGNA\\n\\nagreed to binding arbitration of the matter.\\n\\n The notice of withdrawal indicated that the parties agreed that the district\\n\\ncourt “should, consistent with the Settlement Agreement, Final Judgment and the\\n\\nArbitration Agreement, retain jurisdiction over the parties and this matter for\\n\\npurposes of confirming, modifying and/or vacating that Arbitration Award (as well\\n\\nas any pre-Award decisions) in accordance with the FAA [Federal Arbitration\\n 5\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 6 of 34\\n\\n\\nAct].” However, the Settlement Agreement did not require arbitration and did not\\n\\nhave an arbitration provision. Instead, the arbitration agreement between CIGNA\\n\\nand MCAG was separate and apart from the Settlement Agreement, to which\\n\\nMCAG was not a party. The Reviewers were not parties to the binding arbitration\\n\\nand the arbitration agreement was solely between MCAG and CIGNA.2\\n\\n During the arbitration, the arbitrator required CIGNA to allow reprocessing\\n\\nof certain claims; however, problems supposedly arose. The arbitrator issued non-\\n\\nparty summonses to the following third parties requiring them to participate in the\\n\\narbitration hearing: (1) Epiq, the settlement administrator; (2) David Garcia, a\\n\\nproject director at Epiq; (3) Neil Manning, an ex-employee of Epiq; (4)\\n\\nIMEDECS/Millennium Healthcare Consulting, Inc., the IRE; and (5) Mary Falbo,\\n\\nthe IRE’s founder and CEO (collectively, “the summonsed parties”).\\n\\n The summonses directed the summonsed parties to appear by video. Some\\n\\nalso required the summonsed parties to produce documents. Federal district courts\\n\\nwhere the summonsed parties were located issued corresponding subpoenas. Upon\\n\\nreceipt, however, the summonsed parties objected to the summonses and indicated\\n\\nthey would not comply without an order compelling them to do so. On September\\n\\n2, 2016, MCAG moved the district court to enforce the arbitration summonses\\n\\n\\n 2\\n The district court, sua sponte, closed the MDL on September 9, 2013, because it\\nconcluded all the associated cases had been closed.\\n 6\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 7 of 34\\n\\n\\npursuant to 9 U.S.C § 7. CIGNA then moved to strike MCAG’s motion to enforce\\n\\nthe summonses. IMEDECS, Millennium Healthcare Consulting, Inc., and Falbo\\n\\n(collectively, “IMEDECS”) filed a response in opposition to the motion to enforce.\\n\\nEpiq, Garcia, and Manning (collectively, “Epiq”) also filed a separate response in\\n\\nopposition.\\n\\n A magistrate judge held a hearing and concluded the court had jurisdiction\\n\\nto enforce the arbitration summonses because the district court judge “appointed\\n\\nthe arbitrator and he reserved jurisdiction to enforce the settlement agreement and\\n\\nthe parties agreed, in the arbitration agreement, . . . to the jurisdiction of the\\n\\nCourt.” The magistrate judge ruled directly on the pending motions by granting\\n\\nMCAG’s motion to enforce, while denying CIGNA’s motion to strike. CIGNA,\\n\\nEpiq, and IMEDECS challenged the magistrate judge’s rulings.\\n\\n The district court held a status conference, and CIGNA subsequently moved\\n\\nto enforce the Settlement Agreement and compel an accounting as suggested by\\n\\nthe district court. CIGNA alleged MCAG mismanaged settlement funds totaling\\n\\nover $25 million, which CIGNA had paid to MCAG for the benefit of the class\\n\\nmembers. CIGNA made two types of payments to MCAG. First, prior to\\n\\narbitration, CIGNA paid a total of approximately $11 million to MCAG for class\\n\\nmembers’ claims that were not the subject of arbitration. Second, during\\n\\narbitration, CIGNA paid an additional $14 million for class members’ Category\\n 7\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 8 of 34\\n\\n\\nTwo claims. CIGNA paid these funds to MCAG solely for distribution to class\\n\\nmembers as required by the Settlement Agreement.\\n\\n The district court affirmed the magistrate judge’s order granting MCAG’s\\n\\nmotion to enforce the arbitral summonses and denied CIGNA’s motion to enforce\\n\\nthe Settlement Agreement and compel an accounting. It noted that “[t]he\\n\\nArbitrator shall be allowed to arbitrate the claims in the manner he sees fit.”\\n\\n CIGNA, Epiq, and IMEDECS appeal the district court order. Epiq and\\n\\nIMEDECS challenge the district court’s order enforcing the arbitral summonses.\\n\\nCIGNA appeals the district court’s denial of its motion to enforce the Settlement\\n\\nAgreement and compel an accounting.\\n\\n MCAG conceded during oral argument that: (1) it had not distributed all of\\n\\nthe funds CIGNA paid before the arbitration for claims that were not the subject of\\n\\nthe arbitration (despite MCAG’s previous assertion that it had distributed all of\\n\\nthese funds); (2) it had not distributed any of the settlement money paid by CIGNA\\n\\nfor Category Two claims since the arbitration commenced; and (3) only\\n\\napproximately $4.5 million remains of the settlement proceeds CIGNA paid to\\n\\nMCAG for class members’ Category Two claims. Additionally, MCAG conceded\\n\\nthat it was obligated to pay the class members shortly after receiving payment from\\n\\nCIGNA.\\n\\n\\n 8\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 9 of 34\\n\\n\\n Before oral arguments, this Court issued a jurisdictional question asking the\\n\\nparties to respond to two inquiries: (1) whether the district court order enforcing\\n\\nthe arbitration summonses was a final order, particularly in light of the fact that the\\n\\norder enforced summonses against third parties and is apparently a post-judgment\\n\\norder; and (2) whether the district court’s order denying CIGNA’s motion to\\n\\nenforce the Settlement Agreement and to compel an accounting was final in light\\n\\nof the district court’s reasoning that CIGNA’s claims would instead be handled by\\n\\nthe arbitrator. CIGNA, Epiq, and IMEDECS responded that the orders were final\\n\\nand appealable, while MCAG contended the orders were not final and appealable.\\n\\n II. STANDARDS OF REVIEW\\n\\n A district court’s decision regarding personal jurisdiction is reviewed de\\n\\nnovo. Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir.\\n\\n2013). Additionally, a district court’s decision that it has subject matter\\n\\njurisdiction to hear a motion to enforce arbitral summonses is also reviewed de\\n\\nnovo. Doe v. Fed. Aviation Admin., 432 F.3d 1259, 1261 (11th Cir. 2005). This\\n\\nCourt has not explicitly established a standard of review for a district court’s\\n\\nenforcement of arbitral summonses. However, whether an agency had authority to\\n\\nissue an administrative subpoena and a district court’s interpretation and\\n\\napplication of a statute are reviewed de novo. United States v. Fla. Azalea\\n\\nSpecialists, 19 F.3d 620, 622 (11th Cir. 1994); Alexander v. Hawk, 159 F.3d 1321,\\n 9\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 10 of 34\\n\\n\\n1323 (11th Cir. 1998). Further, a district court’s decision to enforce or quash a\\n\\nsubpoena is reviewed for abuse of discretion. In re Hubbard, 803 F.3d 1298, 1307\\n\\n(11th Cir. 2015). A district court’s decision to deny the equitable remedy of\\n\\naccounting is also reviewed for abuse of discretion. Zaki Kulaibee Establishment\\n\\nv. McFliker, 771 F.3d 1301, 1310 (11th Cir. 2014).\\n\\n Finally, this Court reviews a district court’s interpretation of a settlement\\n\\nagreement de novo, and decisions regarding motions to enforce settlements for\\n\\nabuse of discretion. In re Managed Care, 756 F.3d 1222, 1232 (11th Cir. 2014);\\n\\nResnick v. Uccello Immobilien GMBH, Inc., 227 F.3d 1347, 1350 (11th Cir. 2000).\\n\\n“An error of law is an abuse of discretion per se.” Resnick, 227 F.3d at 1350\\n\\n(citing Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000)).\\n\\n III. ANALYSIS\\n\\n A. Finality of the Order Enforcing Arbitral Summonses\\n\\n The district court’s order enforcing the arbitral summonses is a final and\\n\\nappealable order. The FAA allows an appeal from “a final decision with respect to\\n\\nan arbitration that is subject to this title.” 9 U.S.C. § 16(a)(3). The Supreme Court\\n\\nhas interpreted this section according to the “well-developed and longstanding\\n\\nmeaning” of a “final decision.” Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S.\\n\\n79, 86, 121 S. Ct. 513, 519, 148 L. Ed. 2d 373 (2000). A final decision “ends the\\n\\n\\n 10\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 11 of 34\\n\\n\\nlitigation on the merits and leaves nothing more for the court to do but execute the\\n\\njudgment.” Id. (internal quotation marks omitted).\\n\\n An arbitrator may summons an individual to attend the arbitration as a\\n\\nwitness. 9 U.S.C. § 7. But if the individual who was summonsed to testify refuses\\n\\nto attend, the aggrieved party may petition the United States district court to\\n\\ncompel the attendance of the individual refusing to attend. Id. The district court\\n\\nmust be in the district where the arbitrator sits and may compel attendance “in the\\n\\nsame manner provided by law for securing the attendance of witnesses . . . in the\\n\\ncourts of the United States.” Id. Rule 45(b) of the Federal Rules of Civil\\n\\nProcedure provides the manner of serving subpoenas before the court and states\\n\\nthat “[a] subpoena may be served at any place within the United States.” Fed. R.\\n\\nCiv. P. 45(b)(2).\\n\\n The district court’s order enforcing the arbitration summonses is a post-\\n\\njudgment order. Generally, a post-judgment order is final if it disposes of all the\\n\\nissues raised in the motion that initiated the post-judgment proceedings. Mayer v.\\n\\nWall St. Equity Grp., Inc., 672 F.3d 1222, 1224 (11th Cir. 2012). However, there\\n\\nis authority holding that interlocutory orders denying motions to quash third-party\\n\\nsubpoenas and post-judgment orders compelling discovery are not appealable.\\n\\nDrummond Co. v. Terrance P. Collingsworth, Conrad & Scherer, LLP, 816 F.3d\\n\\n1319, 1322, 1325-27 (11th Cir. 2016); Rouse Constr. Int’l. Inc. v. Rouse Constr.\\n 11\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 12 of 34\\n\\n\\nCorp., 680 F.2d 743, 745-46 (11th Cir. 1982). This case is distinguishable,\\n\\nhowever.\\n\\n Drummond and Rouse did not consider orders under § 7.3 Instead,\\n\\nDrummond states the general rule that a final order “is one by which a district court\\n\\ndisassociates itself from the case.” 816 F.3d at 1322. In other words, “[i]t ends the\\n\\nlitigation on the merits and leaves nothing more for the court to do but execute the\\n\\njudgment.” Id. (internal quotation marks omitted). The Court noted, in the context\\n\\nof a civil litigation subpoena, “[d]iscovery orders are ordinarily not final orders\\n\\nthat are immediately appealable.” Id. (internal quotation marks omitted). Rouse\\n\\nstates, “As a general proposition most orders granting or denying discovery are not\\n\\nfinal orders . . . and therefore are not immediately appealable.” 680 F.2d at 745.\\n\\n Also, in Drummond and Rouse, the district courts were overseeing\\n\\ndiscovery. After discovery concluded, the cases were almost certainly going to\\n\\nreturn to the district court for litigation on the merits (Drummond) or for\\n\\nverification that Rouse Construction Corp. was complying with the arbitration\\n\\naward (Rouse). In contrast, the district court’s order in the present case enforcing\\n\\nthe arbitral summonses sends the litigants back to the standalone arbitration\\n\\n\\n\\n 3\\n Drummond concerned an order denying a motion to quash a subpoena pursuant to Rule\\n45(d)(3)(A) of the Federal Rules of Civil Procedure. 816 F.3d at 1322. Rouse addressed a\\ndistrict court order granting a post-judgment motion to compel discovery pursuant to Rules 37(a)\\nand 69(a) of the Federal Rules of Civil Procedure. 680 F.2d at 744 & n.2, 745 & n.4.\\n 12\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 13 of 34\\n\\n\\nproceeding, and the district court has disposed of everything pending before it. If\\n\\nMCAG or CIGNA wants the district court to review the arbitration award later on,\\n\\nthey will have to submit a separate application to the district court. 9 U.S.C. §§ 9-\\n\\n11.\\n\\n The Second and Seventh Circuits have determined that they possess\\n\\njurisdiction under 9 U.S.C. § 16(a)(3) regarding orders compelling compliance\\n\\nunder 9 U.S.C. § 7. See Dynegy Midstream Servs. v. Trammochem, 451 F.3d 89,\\n\\n92-94 (2d Cir. 2006); Amgen, Inc. v. Kidney Ctr. of Del. Cty., Ltd., 95 F.3d 562,\\n\\n565-67 (7th Cir. 1996). The Second Circuit concluded it had jurisdiction in\\n\\nDynegy because the “litigation to enforce the subpoena [was] an entirely self-\\n\\ncontained court proceeding, and the court’s order compelling compliance\\n\\ncompletely disposed of the case, leaving nothing more for the court to do but\\n\\nenforce the judgment.” 451 F.3d at 93. And in Amgen, the Seventh Circuit noted\\n\\nthat, “[w]hen the district court confirmed the arbitrator’s authority to issue the\\n\\nsummons and when it identified a mechanism to compel compliance with that\\n\\nsummons, it disposed of all the issues before it.” 95 F.3d at 567.\\n\\n Here, the district court confirmed the arbitrator’s authority to issue the\\n\\nsummonses and identified a way to compel compliance with them. Accordingly,\\n\\nthis Court has jurisdiction because the district court order enforcing the summonses\\n\\ndisposed of all the issues before it. See Mayer, 672 F.3d at 1224.\\n 13\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 14 of 34\\n\\n\\n Notwithstanding the district court’s disposition of the motion, it retained\\n\\njurisdiction to review the arbitrator’s decision. The FAA permits “parties to\\n\\narbitration agreements to bring a separate proceeding in a district court to enter\\n\\njudgment on an arbitration award once it is made (or to vacate or modify it), but\\n\\nthe existence of that remedy does not vitiate the finality of the [d]istrict [c]ourt’s\\n\\nresolution of the claims in the instant proceeding.” Green Tree, 531 U.S. at 86,\\n\\n121 S. Ct. at 520 (citing 9 U.S.C. §§ 9, 10, 11). Thus, the district court order was\\n\\nfinal and its retention of jurisdiction to review the arbitrator’s decision does not\\n\\ndestroy the finality of the district court’s ruling pertaining to the enforcement of the\\n\\narbitral summonses. See id.\\n\\n B. Order Allowing Nationwide Arbitral Summons\\n\\n i. Subject Matter Jurisdiction\\n\\n “[T]his court has the obligation to inquire into subject matter jurisdiction\\n\\nwhenever it may be lacking.” Baltin v. Alaron Trading Corp., 128 F.3d 1466,\\n\\n1468 (11th Cir. 1997). When a federal court otherwise lacks jurisdiction, it may\\n\\npossess ancillary jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am.,\\n\\n511 U.S. 375, 379, 114 S. Ct. 1673, 1676, 128 L. Ed. 2d 391 (1994).\\n\\n The district court properly determined that it had ancillary jurisdiction over\\n\\nthe motion to enforce the summonses. However, the magistrate judge improperly\\n\\nfound jurisdiction on two additional grounds: (1) the district court appointed the\\n 14\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 15 of 34\\n\\n\\narbitrator; and (2) the parties agreed to jurisdiction of the district court in their\\n\\narbitration agreement. The first additional ground is an error of law because\\n\\nappointing an arbitrator pursuant to the FAA does not provide jurisdiction. Cf.\\n\\nHall St. Assoc., L.L.C. v. Mattel, Inc., 552 U.S. 578, 581-82, 128 S. Ct. 1396, 1400,\\n\\n1402, 170 L. Ed. 2d 254 (2008). The second additional ground also constitutes an\\n\\nerror of law because jurisdiction cannot be created by an agreement between\\n\\nparties. Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261 (11th Cir. 2000).\\n\\n While the FAA “creates a body of federal substantive law establishing and\\n\\nregulating the duty to honor an agreement to arbitration, [] it does not create any\\n\\nindependent federal-question jurisdiction under 28 U.S.C. § 1331 [] or otherwise.”\\n\\nMoses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 n.32, 103 S.\\n\\nCt. 927, 942 n.32, 74 L. Ed. 2d 765 (1983); see also Hall, 552 U.S. at 581-82, 128\\n\\nS. Ct. at 1402. However, the magistrate judge did not hold that the district court\\n\\nhad federal question jurisdiction. He instead held that the district court had\\n\\nancillary jurisdiction because it retained jurisdiction over the settlement agreement.\\n\\n Ancillary jurisdiction applies when necessary “to enable a court to function\\n\\nsuccessfully, that is, to manage its proceedings, vindicate its authority, and\\n\\neffectuate its decrees.” Kokkonen, 511 U.S. at 380, 114 S. Ct. at 1676. If a court\\n\\nretains jurisdiction over a settlement agreement, it retains ancillary jurisdiction to\\n\\nenforce the agreement. Id. at 381.\\n 15\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 16 of 34\\n\\n\\n The district court retained jurisdiction “as to all matters relating to [] the\\n\\ninterpretation, administration, and consummation of the Agreement.” Because the\\n\\ndistrict court retained jurisdiction concerning matters related to the administration\\n\\nof the Settlement Agreement, it retained jurisdiction over the distribution of\\n\\nCategory Two claims. The arbitration involves disputes regarding distribution of\\n\\nCategory Two claims, so the district court has ancillary jurisdiction over the\\n\\narbitration.\\n\\n While MCAG was not a party to the Settlement Agreement, the Settlement\\n\\nAgreement contained no provision for arbitration, and the summonsed parties were\\n\\nnot parties to the arbitration agreement, the purpose of the arbitration was to\\n\\nresolve disputes involving Category Two claims that arose out of the Settlement\\n\\nAgreement, and the subpoenas issued to the summonsed parties were for the\\n\\npurpose of determining whether Category Two claims as provided in the\\n\\nSettlement Agreement were payable.\\n\\n Accordingly, the district court’s determination that it had ancillary\\n\\njurisdiction is appropriate because the arbitration and arbitral summonses “relat[ed]\\n\\nto” the Settlement Agreement in which the district court retained jurisdiction.4\\n\\n\\n 4\\n CIGNA protests that MCAG lacks standing because it has breached its fiduciary duties\\nto class members it purports to represent. Though CIGNA invokes the language of standing, its\\nstanding argument is a recharacterization of its arguments for why the district court should have\\ngranted its motion to enforce the Settlement Agreement and compel an accounting. We address\\nthat motion below in Part III.D.\\n 16\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 17 of 34\\n\\n\\n ii. Personal Jurisdiction\\n\\n “Before a federal court may exercise personal jurisdiction over a defendant,\\n\\nthe procedural requirement of service of summons must be satisfied.” Omni\\n\\nCapital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S. Ct. 404, 409,\\n\\n98 L. Ed. 2d 415 (1987). Section 7 of the FAA allows nationwide service of\\n\\narbitral summonses. In the present case, the magistrate judge stated, “I find that as\\n\\nfar as personal jurisdiction because it [referring to the service of arbitral\\n\\nsummonses] is allowed throughout the United States that that meets the personal\\n\\njurisdiction needs.”\\n\\n “[I]n interpreting a statute a court should always turn first to one, cardinal\\n\\ncanon before all others . . . . [C]ourts must presume that a legislature says in a\\n\\nstatute what it means and means in a statute what it says there.” Conn. Nat’l Bank\\n\\nv. Germain, 503 U.S. 249, 253-54, 112 S. Ct. 1146, 1149, 117 L. Ed. 2d 391\\n\\n(1992). “When the words of a statute are unambiguous, then, this first canon is\\n\\nalso the last: judicial inquiry is complete.” Id. (internal quotation marks omitted).\\n\\n The words of 9 U.S.C. § 7 are unambiguous, so the plain meaning must be\\n\\nused. Two concepts are addressed in 9 U.S.C. § 7. First, it addresses service of\\n\\narbitral summonses. Next, it addresses compelling enforcement of arbitral\\n\\nsummonses. These concepts are addressed in turn.\\n\\n a. Service of Arbitral Summonses\\n 17\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 18 of 34\\n\\n\\n Title 9 of the United States Code, Section 7, states that arbitral summonses\\n\\n“shall be served in the same manner as subpoenas to appear and testify before the\\n\\ncourt . . . .” Without specifically citing the rule by name, this provision references\\n\\nRule 45 of the Federal Rules of Civil Procedure. Rule 45 governs the service of\\n\\nsubpoenas and states that “[a] subpoena may be served at any place within the\\n\\nUnited States.” Fed. R. Civ. P. 45(b)(2). Thus, under 9 U.S.C. § 7, the FAA\\n\\npermits nationwide service of arbitral summonses.\\n\\n The appellants contend that the Second Circuit has held that Section 7 of the\\n\\nFAA does not authorize nationwide service of process. Dynegy, 451 F.3d at 94-96.\\n\\nHowever, the Second Circuit issued its opinion in Dynegy in 2006, well before\\n\\nRule 45 was amended in 2013 to provide for nationwide service of subpoenas.\\n\\nFed. R. Civ. P. 45 advisory committee’s note to 2013 amendment. “When a statute\\n\\nadopts the general law on a given subject, the reference is construed to mean that\\n\\nthe law is as it reads thereafter at any given time including amendments subsequent\\n\\nto the time of adoption.” Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1352\\n\\n(5th Cir. 1980) (quoting Dir., Office of Workers’ Comp. Programs v. Peabody\\n\\nCoal Co., 554 F.2d 310, 322 (7th Cir. 1977)); see also Jam v. Int’l Fin. Corp.,\\n\\n__ U.S. __, 139 S. Ct. 759, 769, 203 L. Ed. 2d 53 (2019) (“[W]hen a statute refers\\n\\nto a general subject, the statute adopts the law on that subject as it exists whenever\\n\\na question under the statute arises.”). Conversely, when a statute references\\n 18\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 19 of 34\\n\\n\\n“limited and particular provisions of another statute,” it does not include\\n\\nsubsequent amendments. Longmire, 610 F.2d at 1352; see also Jam, __ U.S. __,\\n\\n139 S. Ct. at 769 (“[A] statute that refers to another statute by specific title or\\n\\nsection number in effect cuts and pastes the referenced statute as it existed when\\n\\nthe referring statute was enacted, without any subsequent amendments.”).\\n\\n Further, Jam states that “a general reference to federal discovery rules\\n\\nincorporates those rules ‘as they are found on any given day, today included.’” Id.\\n\\n(quoting El Encanto, Inc. v. Hatch Chile Co., 825 F.3d 1161, 1164 (10th Cir. 2016)\\n\\n(specifying that the reference to Rule 45 in 35 U.S.C. § 24 is a general reference\\n\\nand refers to Rule 45 as it is today)). Because Section 7 of the FAA contains a\\n\\ngeneral reference to Rule 45 by requiring subpoenas to be “served in the same\\n\\nmanner as subpoenas to appear and testify before the court,” it incorporates\\n\\nsubsequent changes to Rule 45, including the 2013 amendment permitting\\n\\nnationwide service. The incorporation of the 2013 amendment to Rule 45\\n\\npermitting nationwide service therefore distinguishes the present case from the\\n\\nSecond Circuit’s holding in Dynegy. Accordingly, we conclude that nationwide\\n\\nservice of arbitral summonses is appropriate.\\n\\n b. Compelling Enforcement of Arbitral Summonses\\n\\n Section 7 of the FAA also addresses compelling the enforcement of arbitral\\n\\nsummonses when a summonsed party fails to comply. The section states that if a\\n 19\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 20 of 34\\n\\n\\nperson refuses to comply with an arbitral summons, a court “may compel the\\n\\nattendance of such person . . . in the same manner provided by law for securing the\\n\\nattendance of witnesses . . . in the courts of the United States.” 9 U.S.C. § 7.\\n\\nAgain, without specifically citing the rule by name, this provision references Rule\\n\\n45 of the Federal Rules of Civil Procedure. Rule 45 governs securing the\\n\\nattendance of witnesses and states that “the serving party may move the court for\\n\\nthe district where compliance is required for an order compelling production or\\n\\ninspection.” Fed. R. Civ. P. 45(d)(2)(B)(i). However, 9 U.S.C. § 7 provides that\\n\\nthe district court for the district in which the arbitrators are sitting may compel the\\n\\nattendance of a person refusing to obey an arbitral summons.\\n\\n Initially, it appears that 9 U.S.C. § 7 and Rule 45 are inconsistent because\\n\\nRule 45 requires the motion to be filed in the district where compliance is required,\\n\\nwhile 9 U.S.C. § 7 requires the motion to be filed in the district where the\\n\\narbitrators sit. Ultimately however, this inconsistency is avoided because 9 U.S.C.\\n\\n§ 7 simply states that compelling attendance must be done in the same manner\\n\\nprovided by law (i.e., filing a motion) and does not incorporate Rule 45 regarding\\n\\nwhere motions to compel must be filed. As a result, we conclude that the plain\\n\\nmeaning of 9 U.S.C. § 7 requires that a motion to compel must be filed in the\\n\\ndistrict in which the arbitrators are sitting.\\n\\n iii. Fifth Amendment\\n 20\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 21 of 34\\n\\n\\n Even if a statute authorizes nationwide service of process, due process\\n\\nrequires that the district court evaluate traditional notions of fairness and\\n\\nreasonableness, by weighing the burdens imposed on the summonsed parties\\n\\nagainst the federal interest, before exercising personal jurisdiction. Republic of\\n\\nPanama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 946, 948 (11th Cir.\\n\\n1997). However, when nationwide service is involved, “it is only in highly\\n\\nunusual cases that inconvenience will rise to a level of constitutional concern.” Id.\\n\\nat 938-39, 947. Further, we need to balance the federal interest against the burdens\\n\\nimposed on the summonsed parties only if they have “established that [their]\\n\\nliberty interests actually have been infringed” and that “jurisdiction in the forum\\n\\nwill make litigation so gravely difficult and inconvenient that [they] unfairly [are]\\n\\nat a severe disadvantage in comparison to [their] opponent.” Id. at 946, 948\\n\\n(internal quotation marks omitted).\\n\\n The summonsed parties in this case assert that requiring non-parties to travel\\n\\nto distant jurisdictions to defend against arbitral summonses serves no federal\\n\\npurpose and that exercising jurisdiction is neither fair nor reasonable. However,\\n\\n“[t]here is nothing inherently burdensome about crossing a state line.” Id. at 946.\\n\\nFurther, the summonsed parties have not shown that the inconvenience of traveling\\n\\nin the present case to litigate their objections to the arbitral summonses rises to the\\n\\nlevel of constitutional concern. Accordingly, the Court need not consider whether\\n 21\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 22 of 34\\n\\n\\nthe “federal interest in litigating the dispute in the chosen forum outweighs the\\n\\nburden imposed” on the summonsed parties. Id. at 948.\\n\\n iv. Pre-Hearing Discovery from Non-Parties\\n\\n As previously explained, the summonsed parties are non-parties to the\\n\\narbitration agreement. Arbitration is a creature of contract and “an arbitrator’s\\n\\nauthority over the parties to an arbitration is limited by the contours of the parties’\\n\\nagreement and those enumerated in the [FAA].” Kennedy v. Am. Express Travel\\n\\nRelated Servs. Co., 646 F. Supp. 2d 1342, 1343 (S.D. Fla. 2009). Non-parties to an\\n\\narbitration agreement have not subjected themselves to the authority of an\\n\\narbitrator and, therefore, have not limited their rights beyond the FAA.\\n\\nAccordingly, the authority for an arbitrator to summons non-parties to produce pre-\\n\\nhearing discovery must be found within the FAA.\\n\\n Section 7 of the FAA allows an arbitrator to “summon in writing any person\\n\\nto attend before them . . . as a witness and in a proper case to bring with him . . .\\n\\nany book, record, document, or paper which may be deemed material as evidence\\n\\nin the case.” 9 U.S.C. § 7. In Hay Group, Inc. v. E.B.S. Acquisition Corp.,\\n\\n360 F.3d 404, 407 (3d Cir. 2004), then-Judge Alito found that the plain language\\n\\nof Section 7 “unambiguously restricts an arbitrator’s subpoena power to situations\\n\\nin which the non-party has been called to appear in the physical presence of the\\n\\narbitrator and to hand over the documents at that time.” The Second, Fourth, and\\n 22\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 23 of 34\\n\\n\\nNinth Circuits have reached similar conclusions that Section 7 is unambiguous and\\n\\ndoes not provide arbitrators with the authority to order non-parties to provide\\n\\ndocuments outside of the presence of the arbitrator. Life Receivables Tr. v.\\n\\nSyndicate 102 at Lloyds of London, 549 F.3d 210, 216 (2d Cir. 2008) (“The\\n\\nlanguage of section 7 is straightforward and unambiguous. Documents are only\\n\\ndiscoverable in arbitration when brought before arbitrators by a testifying\\n\\nwitness.”); COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d 269, 275-76 (4th Cir.\\n\\n1999) (arbitral summons powers are “limited to those created by the express\\n\\nprovisions of the FAA,” which do not include “the authority to order non-parties to\\n\\n. . . provide the litigating parties with documents during prehearing discovery,” but\\n\\na party may petition the court for pre-hearing discovery upon a showing of\\n\\nnecessity); CVS Health Corp. v. Vividus, LLC, 878 F.3d 703, 708 (9th Cir. 2017)\\n\\n(“[S]ection 7 of the FAA does not grant arbitrators the power to order third parties\\n\\nto produce documents prior to an arbitration hearing.”). However, the Eighth\\n\\nCircuit has held that while Section 7 does not “explicitly authorize the arbitration\\n\\npanel to require the production of documents for inspection by a party[,] . . .\\n\\nimplicit in an arbitration panel’s power to subpoena relevant documents for\\n\\nproduction at a hearing is the power to order the production of relevant documents\\n\\n\\n\\n\\n 23\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 24 of 34\\n\\n\\nfor review by a party prior to the hearing.” 5 In re Sec. Life Ins. Co. of Am.,\\n\\n228 F.3d 865, 870-71 (8th Cir. 2000).\\n\\n After analyzing these cases, we agree with the Second, Third, Fourth, and\\n\\nNinth Circuits and hold that the plain language of the statute is unambiguous in\\n\\nrequiring witnesses to appear before an arbitrator and bring any documents with\\n\\nthem, thus prohibiting pre-hearing discovery from non-parties. The FAA confers\\n\\nthe power to compel a non-party to attend an arbitration hearing and bring\\n\\ndocuments, but it is silent regarding the power to compel documents from non-\\n\\nparties without summoning the non-party to testify. See 9 U.S.C. § 7. Thus, the\\n\\nFAA implicitly withholds the power to compel documents from non-parties\\n\\nwithout summoning the non-party to testify. And if Congress intended the\\n\\narbitrators to have the broader power to compel documents from non-parties\\n\\nwithout summoning the non-party to testify, it could have said so. Accordingly,\\n\\nwe conclude that 9 U.S.C. § 7 does not permit pre-hearing depositions and\\n\\ndiscovery from non-parties.\\n\\n We respectfully decline to follow the Eighth Circuit’s reasoning that the\\n\\n“interest in efficiency is furthered by permitting a party to review and digest\\n\\n\\n 5\\n The Sixth Circuit has also authorized a subpoena to a non-party for pre-hearing\\ndocuments, but while the court looked to the FAA for guidance in the labor arbitration case, its\\nholding was limited to Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C.\\n§ 185. Am. Fed’n of Tel. & Radio Artists, AFL-CIO v. WJBK-TV, 164 F.3d 1004, 1009 (6th Cir.\\n1999).\\n 24\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 25 of 34\\n\\n\\nrelevant documentary evidence prior to the arbitration hearing.” In re Sec. Life Ins.\\n\\nCo. of Am., 228 F.3d at 870-71. Simply put, because the plain meaning of the\\n\\nstatute does not permit pre-hearing discovery from non-parties, the policy\\n\\nargument does not supersede the text of the statute.\\n\\n The summonses issued in the present case indicate that the non-parties shall\\n\\nattend a hearing before the arbitrator. The hearing will be held in Miami, Florida,\\n\\nbut the testimony of the non-parties will be taken in their respective locations\\n\\nacross the country and transmitted via video conference. Additionally, the\\n\\nsummonses directed the non-parties to bring certain documents to the video\\n\\nconference.\\n\\n The first issue with the summonses is that the non-parties will not be in the\\n\\nphysical presence of the arbitrator. Instead, the arbitrator will be located in Miami\\n\\nwhile the non-parties are in their respective states, and the hearing will take place\\n\\nvia video conference. We hold that the district court abused its discretion in\\n\\naffirming the magistrate judge’s order granting Managed Care’s motion to compel\\n\\nthe non-parties to comply with the summonses because the district court lacked\\n\\nauthority under Section 7 to do so.\\n\\n “It’s a fundamental canon of statutory construction that words generally\\n\\nshould be interpreted as taking their ordinary meaning at the time Congress\\n\\nenacted the statute.” New Prime v. Oliveira, __ U.S. __, 139 S. Ct. 532, 539-40,\\n 25\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 26 of 34\\n\\n\\n202 L. Ed. 2d 536 (2019) (alterations adopted) (internal quotation marks omitted).\\n\\nCongress passed Section 7 in 1925, so we must ascertain the meaning of\\n\\n“attendance” and “before” in Section 7’s grant of authority to district courts to\\n\\n“compel the attendance of such person or persons before said arbitrator . . . in the\\n\\nsame manner provided by law for securing the attendance of witnesses . . . in the\\n\\ncourts of the United States” as of 1925.6 9 U.S.C. § 7 (emphasis added); see also\\n\\nOliveira, __ U.S. at __, 139 S. Ct. at 539-40 & 540 n.1 (looking to dictionaries\\n\\npublished in the decades surrounding 1925 to determine the meaning of “contracts\\n\\nof employment” in Section 1 of the FAA).\\n\\n Looking to dictionaries from the time of Section 7’s enactment makes clear\\n\\nthat a court order compelling the “attendance” of a witness “before” the arbitrator\\n\\nmeant compelling the witness to be in the physical presence of the arbitrator. In\\n\\n1925, “attendance” meant the “[a]ct of attending,” and “attend” meant “be present\\n\\nat.” See, e.g., H.W. Fowler & F.G. Fowler, The Concise Oxford Dictionary of\\n\\nCurrent English 52 (1926). Similarly, “before” meant “in [the] presence of.” Id.\\n\\nat 74. And “presence” meant “place where person is,” while “present” meant\\n\\n“[b]eing in the place in question.” Id. at 650. Thus, Section 7 does not authorize\\n\\ndistrict courts to compel witnesses to appear in locations outside the physical\\n\\n\\n\\n 6\\n United States Arbitration Act, Pub. L. No. 68-401, § 7, 43 Stat. 883, 884 (1925).\\n 26\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 27 of 34\\n\\n\\npresence of the arbitrator, so the court may not enforce an arbitral summons for a\\n\\nwitness to appear via video conference.\\n\\n The second issue with the video conference concerns the production of\\n\\ndocuments. The summonses do not indicate how the arbitrator will view and\\n\\nconsider the documents brought by the non-parties to the video conference. The\\n\\ndistrict court and magistrate judge went beyond the directive of the summonses to\\n\\nindicate that a video conference is possible and permissible because documents can\\n\\nbe provided in advance to the attorneys and arbitrator, allowing the arbitrator to\\n\\nmake decisions as the evidence is presented. The fundamental problem with the\\n\\ndistrict court’s attempt at resolving the presentation of the documents is that\\n\\nproviding the necessary documents to the arbitrator and attorneys prior to the\\n\\nhearing constitutes pre-hearing discovery that is not authorized by the FAA. CVS\\n\\nHealth Corp., 878 F.3d at 708. Accordingly, the provision of documents prior to\\n\\nthe hearing is not the same as appearing in the physical presence of an arbitrator\\n\\nand bringing documents at the time of the hearing. As a result, this requirement is\\n\\nnot enforceable.\\n\\n “The [arbitrator’s] power to require a non-party to bring items with him\\n\\nclearly applies only to situations in which the non-party accompanies the items to\\n\\nthe arbitration proceeding, not to situations in which the items are simply sent or\\n\\nbrought by a courier.” Hay Grp., 360 F.3d at 407. We look beyond the plain\\n 27\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 28 of 34\\n\\n\\nlanguage of a statute only if applying the statute in accordance with the plain\\n\\nlanguage would lead to an absurd result. Consol. Bank, N.A. v. U.S. Dep’t of\\n\\nTreasury, 118 F.3d 1461, 1463-64 (11th Cir. 1997). Enforcing Section 7’s\\n\\nprohibition on pre-hearing discovery does not lead to an absurd result because it\\n\\nwill force the parties “to consider whether the documents are important enough to\\n\\njustify the time, money, and effort that the subpoenaing parties will be required to\\n\\nexpend if an actual appearance before an arbitrator is needed.” Hay Grp., Inc., 360\\n\\nF.3d at 409. This leads to a redistribution of bargaining power where “the party\\n\\nseeking the documents cannot simply obtain a subpoena requiring the documents\\n\\nto be shipped from one warehouse to another; instead, the party [seeking the\\n\\ndocuments] will be forced to appear at a proceeding during which the documents\\n\\nare produced.” Id. at 411. Additionally, enforcing the bar on pre-hearing\\n\\ndiscovery is beneficial because it will impose some inconvenience on the arbitrator\\n\\nthat will induce the arbitrator to weigh whether the production of the documents is\\n\\nnecessary. See id. at 414 (Chertoff, J., concurring).\\n\\n Accordingly, we interpret the plain meaning of Section 7 as (1) requiring\\n\\nsummonsed non-parties to appear in the physical presence of the arbitrator as\\n\\nopposed to a video conference or teleconference; and (2) prohibiting pre-hearing\\n\\ndiscovery. The district court abused its discretion in enforcing the arbitral\\n\\n\\n 28\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 29 of 34\\n\\n\\nsummonses because the court lacked power under Section 7 to order the witnesses\\n\\nto appear at the video conference and provide pre-hearing discovery.\\n\\n C. The Finality of the Order Denying Enforcement of the Settlement\\n Agreement\\n\\n The district court’s order denying CIGNA’s motion to enforce the\\n\\nSettlement Agreement and compel an accounting constitutes a post-judgment order\\n\\nthat is final and appealable. An order is final when it disposes of all the issues\\n\\nraised in the motion that initiated the post-judgment proceedings. Mayer, 672 F.3d\\n\\nat 1224. While CIGNA’s motion to enforce the Settlement Agreement and compel\\n\\nan accounting was not the motion that triggered the post-judgment proceeding,\\n\\nCIGNA could have filed this motion to start a post-judgment proceeding even if\\n\\nMCAG had not already filed its petition to enforce the arbitral summonses.\\n\\nFurther, the order denying CIGNA’s motion disposed of the entire post-judgment\\n\\naction, leaving nothing more for the district court to do. Accordingly, it is properly\\n\\ncharacterized as a final and appealable order.\\n\\n D. The District Court’s Failure to Enforce the Settlement Agreement\\n and Compel an Accounting\\n\\n The claims pending in the arbitration address Category Two claims that have\\n\\nnot yet been paid, whereas CIGNA’s motion seeks an accounting of what MCAG\\n\\nhas done with the proceeds of the claims that CIGNA has already paid. The\\n\\ndistrict court denied CIGNA’s motion to enforce the Settlement Agreement and\\n 29\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 30 of 34\\n\\n\\ncompel an accounting on the ground that “[t]he Arbitrator shall be allowed to\\n\\narbitrate the claims in the manner he sees fit.” However, the district court abused\\n\\nits discretion by allowing the arbitrator to review the claims that have already been\\n\\npaid, because the district court has a duty to class members to ensure that they\\n\\nreceive what they are entitled to under the Settlement Agreement and may not\\n\\ndefer to the arbitrator to compel an accounting of the claims that fall outside the\\n\\nambit of the arbitration agreement.\\n\\n The district court retained jurisdiction “as to all matters relating to [] the\\n\\ninterpretation, administration, and consummation of the [Settlement] Agreement.”\\n\\nBecause the district court retained jurisdiction over the administration of the\\n\\nSettlement Agreement, which set the terms for how CIGNA would compensate\\n\\nclass members, it has a responsibility to ensure the class members receive that to\\n\\nwhich they are entitled under the Settlement Agreement.\\n\\n The district court’s explicit retention of jurisdiction is consistent with\\n its responsibility, pursuant to Fed. R. Civ. P. 23, to protect the interests\\n of class members . . . . Retention of jurisdiction is enhanced when the\\n court is attempting to protect members of a class action: In a class\\n action, the district court has a duty to class members to see that any\\n settlement it approves is completed, and not merely to approve a\\n promise . . . to pay the relief to which it has decided class members are\\n entitled.\\n\\nAlexander v. Chicago Park Dist., 927 F.2d 1014, 1023 (7th Cir. 1991) (citing In re\\n\\nCorrugated Container Antitrust Litig., 752 F.2d 137, 141 (5th Cir. 1985)) (internal\\n\\n 30\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 31 of 34\\n\\n\\nblock quotation omitted); see also United States v. City. of Miami, 614 F.2d 1322,\\n\\n1331 (5th Cir. 1980) (explaining that courts, in their “role as a fiduciary” and\\n\\n“guardian for the unrepresented class members,” must apply “careful scrutiny . . .\\n\\nto guard against settlements that may benefit the class representatives or their\\n\\nattorneys at the expense of absent class members”).\\n\\n In the present case, the district court retained jurisdiction “as to all matters\\n\\nrelating to [] the interpretation, administration, and consummation of the\\n\\nAgreement.” The motion to enforce the Settlement Agreement and compel an\\n\\naccounting was initiated because CIGNA paid approximately $25 million to\\n\\nMCAG for class members’ claims submitted pursuant to the Settlement Agreement\\n\\nand, based on the record before the Court, it does not appear that class members\\n\\nreceived a significant portion of the funds to which they are entitled. CIGNA paid\\n\\nMCAG approximately $11 million prior to arbitration to distribute to class\\n\\nmembers for claims that were not the subject of the arbitration agreement and $14\\n\\nmillion during arbitration for Category Two claims.7 CIGNA paid these funds to\\n\\nMCAG solely for distribution to class members for their approved claims as\\n\\nrequired by the Settlement Agreement.\\n\\n\\n 7\\n MCAG and CIGNA agreed to arbitrate “final resolution of all issues relating to whether\\nthe claims for Category Two Compensation under the Settlement Agreement . . . submitted by\\nMCAG on behalf of Class Members are payable pursuant to that agreement . . . .” Because\\nCIGNA already has paid $14 million in Category Two claims, these claims are no longer\\n“payable,” and so they fall outside the ambit of the arbitration agreement.\\n 31\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 32 of 34\\n\\n\\n MCAG’s Chief Financial Officer, Douglas Perry, filed a sworn declaration\\n\\nstating that, “CIGNA paid approximately $11 million to MCAG prior to the\\n\\nArbitration in connection with other types of claims. Those moneys were\\n\\ndisbursed to class members.” However, MCAG subsequently admitted during oral\\n\\nargument that it distributed to class members only $7.5 million of the $11 million\\n\\nCIGNA paid for claims that were not the subject of arbitration. At a minimum,\\n\\nthis discrepancy indicates that class members have not received approximately\\n\\n$3.5 million of the funds to which they are entitled under the Settlement\\n\\nAgreement. Therefore, the district court should require an accounting regarding\\n\\nfunds CIGNA paid to MCAG for claims that were not the subject of the arbitration.\\n\\nAlexander, 927 F.2d at 1023.\\n\\n MCAG also admitted during oral argument that it has not distributed any of\\n\\nthe $14 million CIGNA paid to MCAG for Category Two claims since the\\n\\narbitration began. MCAG further admitted that only approximately $4.5 million\\n\\nremains of the $14 million CIGNA paid to MCAG for class members’ Category\\n\\nTwo claims. The physician agreements between MCAG and class members\\n\\nindicate that MCAG would retain at most 30 percent of the recovery amount.\\n\\nTherefore, even if MCAG distributes the remaining $4.5 million to claimants, a\\n\\ntotal of approximately $12 million would be distributed to class members and\\n\\n\\n 32\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 33 of 34\\n\\n\\nMCAG would retain over 50 percent of the total amount paid by CIGNA. This is\\n\\nsignificantly more than the 30 percent agreed to in the physician agreements.\\n\\n An accounting will provide information regarding how settlement proceeds\\n\\nhave been distributed because there is no formal record of what MCAG did with\\n\\napproximately $3.5 million in paid claims that were not the subject of the\\n\\narbitration and $9.5 million in paid Category Two claims that should have gone to\\n\\nclass members under the Settlement Agreement. See Alexander, 927 F.2d at 1023.\\n\\nAdditionally, MCAG is in possession of $4.5 million of the Category Two funds\\n\\nand has not indicated how those funds will be paid to the class members who are\\n\\nentitled to receive them.\\n\\n IV. CONCLUSION\\n\\n This litigation has been ongoing for almost twenty years, but it appears that\\n\\nmost of the money CIGNA paid to MCAG for the class members has not been\\n\\ndistributed. The district court should require an expeditious accounting of all funds\\n\\nCIGNA previously paid to MCAG for the benefit of the class members. The\\n\\naccounting should include any interest earned on the funds paid to MCAG. 8\\n\\n\\n\\n\\n 8\\n We deny as moot CIGNA’s first motion to supplement the record. On remand, CIGNA\\nmay move the district court for permission to refile these documents on the district court’s\\ndocket. We also deny as moot CIGNA’s motion for clarification regarding oral argument.\\n 33\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 34 of 34\\n\\n\\n The judgment of the district court is REVERSED, and this case is\\n\\nREMANDED for further proceedings consistent with this opinion.\\n\\n\\n\\n\\n 34\", \"resource_uri\": \"https://www.courtlistener.com/api/rest/v4/opinions/4439459/\", \"author_raw\": \"PER CURIAM\"}]}"},"judge1":{"kind":"string","value":"JILL PRYOR"},"judge2":{"kind":"string","value":"BRANCH"},"judge3":{"kind":"string","value":"REEVES"},"exactly_three_caps":{"kind":"number","value":1,"string":"1"},"extra_judges":{"kind":"string","value":""},"judge_designations":{"kind":"string","value":"{\"JILL PRYOR\": \", Circuit\", \"BRANCH\": \", Circuit\", \"REEVES\": \", District\"}"},"opinions_count":{"kind":"number","value":1,"string":"1"},"majority_count":{"kind":"number","value":0,"string":"0"},"dissent_count":{"kind":"number","value":0,"string":"0"},"concurrence_count":{"kind":"number","value":0,"string":"0"},"other_count":{"kind":"number","value":1,"string":"1"},"primary_citation":{"kind":"string","value":""},"reporter":{"kind":"string","value":""},"volume":{"kind":"null"},"resource_url":{"kind":"string","value":"https://www.courtlistener.com/api/rest/v4/clusters/4662206/"},"precedential_status":{"kind":"string","value":"Published"},"010combined_count":{"kind":"number","value":1,"string":"1"},"020lead_count":{"kind":"number","value":0,"string":"0"},"030concurrence_count":{"kind":"number","value":0,"string":"0"},"035concurrenceinpart_count":{"kind":"number","value":0,"string":"0"},"040dissent_count":{"kind":"number","value":0,"string":"0"},"year":{"kind":"number","value":2019,"string":"2,019"},"month":{"kind":"number","value":9,"string":"9"},"messages":{"kind":"list like","value":[{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\n\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\nobject that encodes the following variables:\n\n- Petitioner (name, description, and general category)\n- Respondent (name, description, and general category)\n- Disposition of Case\n- Winning Party\n- Issue Area\n- Legal Provisions\n- Decision Direction\n- Lower Court Direction\n- Declaration of Unconstitutionality\n- Method (panel, en banc, or rehearing)\n- Who Appealed (original plaintiff vs. defendant)\n- Dissent Basis (procedural vs. merits — only if dissent exists)\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\n\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\nrules as closely as possible, treating the **Court of Appeals as \"the Court\"** and assuming\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\n\nTo encode these variables, start by determining the petitioner and respondent, following the\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\n\n==================================================\n1. INPUT FORMAT\n==================================================\n\nYou will receive input in two sections:\n\n[CASE_METADATA]\nCase name: <case name as in the caption>\nCourt: <name of the Court of Appeals, e.g. \"United States Court of Appeals for the Ninth Circuit\">\nDate decided: <YYYY-MM-DD or best approximation>\nOpinion type: <e.g. \"majority\", \"per curiam\", \"on-the-merits\", \"rehearing\", \"en banc\", etc.>\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\nAdditional notes: <any other metadata or summary, if provided>\n\n[CASE_TEXT]\n<full or excerpted opinion text here>\n[END_CASE]\n\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\nsubstantive discussion in the opinion.\n\n==================================================\n2. OUTPUT FORMAT\n==================================================\n\nYou must output ONLY a single JSON object with exactly these keys:\n\n- \"petitioner\"\n- \"respondent\"\n- \"case_disposition\"\n- \"winning_party\"\n- \"issue_area\"\n- \"legal_provisions\"\n- \"decision_direction\"\n- \"lower_court_direction\"\n- \"declaration_of_unconstitutionality\"\n- \"method\"\n- \"who_appealed\"\n- \"dissent_basis\" (only if the case has a dissenting opinion)\n- \"concurrence_type\" (only if the case has a concurring opinion)\n- \"concurrence_basis\" (only if the case has a concurring opinion)\n- \"justification\"\n\nSchema:\n\n- \"petitioner\": {\n \"name\": string, // short party name from caption; usually the appellant\n \"description\": string, // role and identity, e.g. \"federal criminal defendant appealing conviction\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"respondent\": {\n \"name\": string,\n \"description\": string, // e.g. \"United States as appellee\", \"private employer\", \"federal agency\"\n \"category\": integer, // 1–7 general litigant type (see Section 3.1)\n \"category_label\": string // label for the category code\n }\n\n- \"case_disposition\": {\n \"code\": integer, // must be one of the codes below\n \"label\": string\n }\n\n- \"winning_party\": {\n \"code\": integer, // 0, 1, or 2 as defined below\n \"label\": string\n }\n\n- \"issue_area\": {\n \"code\": integer, // 1–14 from the list below\n \"label\": string // short description of the main issue area\n }\n\n- \"issue_area_alt\": {\n \"code\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\n \"label\": string\n }\n\n- \"legal_provisions\": [\n {\n \"area_code\": integer, // 1–9 (law area codes below)\n \"area_label\": string,\n \"provision_text\": string // e.g. \"Fourth Amendment, search and seizure\", \"18 U.S.C. § 924(c)\"\n },\n ...\n ]\n\n- \"decision_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"lower_court_direction\": {\n \"code\": integer, // 1, 2, or 3 as defined below\n \"label\": string\n }\n\n- \"declaration_of_unconstitutionality\": {\n \"code\": integer, // 0 or 1 (see Section 3.8)\n \"label\": string // \"no\" or \"yes\"\n }\n\n- \"method\": {\n \"code\": integer, // 1–4 (see Section 3.9)\n \"label\": string\n }\n\n- \"who_appealed\": {\n \"code\": integer, // 1–4 (see Section 3.10)\n \"label\": string\n }\n\n- \"dissent_basis\": { // ONLY include if \"Has dissenting opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"concurrence_type\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"code\": integer, // 1–3 (see Section 3.12)\n \"label\": string\n }\n\n- \"concurrence_basis\": { // ONLY include if \"Has concurring opinion: Yes\" in metadata\n \"procedural\": integer, // 0–3 (see Section 3.11)\n \"merits\": integer // 0–3 (see Section 3.11)\n }\n\n- \"justification\": string // 2–4 sentences summarizing why you chose these codes.\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\n // (c) how that combination implied the decision_direction.code you chose, and\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\n\nYour entire response must be exactly one JSON object in this schema and nothing else.\n\n==================================================\n3. VARIABLE INTERPRETATION\n==================================================\n\n3.1 Petitioner and Respondent\n\n- Use the case caption, opinion type, and text to determine who is appealing.\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\n- Respondent = the party opposing the appeal (typically the appellee).\n- The \"name\" should be a reasonably short label from the caption.\n- The \"description\" should describe their role and identity (e.g., \"federal prisoner challenging sentence\",\n \"state official in civil-rights suit\", \"private corporation defendant\", \"federal agency\").\n\nFor each party, also assign a \"category\" code using this 7-category typology:\n\n1 = private business or corporation (including partnerships, sole proprietorships)\n2 = nonprofit organization, interest group, or union (as an institutional party)\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\n4 = sub-state government (city, county, municipality, school district, local official)\n5 = state government (state, governor, state agency, state official in official capacity)\n6 = tribal government or Indian nation\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\n\nChoose the category based on who the party IS, not what kind of case it is. When a government\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\n\n\n3.2 Disposition of Case\n\nCodes (Songer-style numbering):\n\n1 = affirmed (includes modified and affirmed)\n2 = reversed\n3 = reversed and remanded\n4 = vacated and remanded\n5 = affirmed in part, reversed (or vacated) in part\n6 = affirmed in part, reversed (or vacated) in part, and remanded\n7 = vacated\n8 = petition denied or appeal dismissed\n9 = stay, petition, or motion granted\n10 = certification to or from a lower court\n11 = affirmed, vacated, and remanded (without reversal)\n0 = no disposition\n\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\n or original authority (the word \"remand\" must appear in the opinion text).\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\n or vacatur (7) of the prior judgment.\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\"no disposition\").\n\n\n3.3 Winning Party\n\nCodes:\n\n0 = no favorable disposition for petitioning party apparent\n1 = petitioning party received a favorable disposition\n2 = favorable disposition for petitioning party unclear\n\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\n- A \"favorable disposition\" is one that materially improves the petitioner's position relative to the lower court judgment\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\n regardless of the case disposition.\n\n\n3.4 Issue Area\n\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\n\n1 = Criminal Procedure\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\n\n2 = Civil Rights\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\n\n3 = First Amendment\n (e.g., freedom of speech, press, association, religion, and related expression claims)\n\n4 = Due Process\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\n\n5 = Privacy\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\n\n6 = Attorneys\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\n\n7 = Unions\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\n\n8 = Economic Activity\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\n\n9 = Judicial Power\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\n\n10 = Federalism\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\n\n11 = Interstate Relations\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\n\n12 = Federal Taxation\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\n\n13 = Miscellaneous\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\n\n14 = Private Action\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\n\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\nIf multiple areas appear, choose the one most emphasized in the reasoning.\n\nIMPORTANT — AVOID MISCELLANEOUS (13):\n\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\napproximately. Before choosing 13, reconsider the following common mappings:\n\n - Medical malpractice, products liability, personal injury, breach of contract,\n admiralty, property disputes → 14 (Private Action)\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\n - Attorneys' fees, bar discipline → 6 (Attorneys)\n - Federal preemption of state law → 10 (Federalism)\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\n\nIf you DO choose issue_area.code = 13, you MUST also fill in \"issue_area_alt\" with your\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\nset \"issue_area_alt\" to the same code and label as \"issue_area\".\n\nISSUE AREA TIEBREAKING RULES:\n\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\n\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\n a civil-rights statute was violated.\n\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\n termination of benefits, property seizure in a civil case).\n\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\n primarily about whether it has the power to hear the case — i.e., the court resolves a\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\n\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\n statute preempts state regulation, use 10. If the holding is about the substance of a\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\n use 8.\n\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\n procedural fairness or property/liberty deprivation without an underlying discrimination\n allegation.\n\n\n3.5 Legal Provisions\n\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \"legal_provisions\".\n\nLaw Area codes (SCDB varLawArea):\n\n1 = Constitution (original text)\n An Article or Section of the original Constitution (not an Amendment).\n Examples: Article I (congressional power), Article II (executive power),\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\n and Credit Clause, Contracts Clause.\n\n2 = Constitutional Amendment\n Any Amendment to the Constitution, including the Bill of Rights.\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\n punishment), Fourteenth Amendment (equal protection, due process).\n\n3 = Federal Statute\n A statute enacted by Congress, cited by title and section of the U.S. Code or\n by its popular name. This is the most common category.\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\n\n4 = Court Rules\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\n Procedure, as well as local circuit rules.\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\n (prejudicial evidence).\n\n5 = Other\n Common law doctrines, equitable principles, or other legal authorities not fitting\n the categories above.\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\n of laches, implied contracts.\n\n6 = Infrequently litigated statutes\n Federal statutes that appear rarely in appellate litigation and are not well-known\n by popular name. Use this when the statute is obscure or highly specialized.\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\n obscure provisions of the Internal Revenue Code.\n\n8 = State or local law or regulation\n A state statute, state constitutional provision, local ordinance, or state/local\n regulation. Use this when the court applies or interprets state or local law rather\n than federal law.\n Examples: state tort law, state contract law, state criminal statute, local zoning\n ordinance, state environmental regulation.\n\n9 = No Legal Provision\n The opinion does not meaningfully rely on any identifiable legal provision. Very\n rare — use only when the court's analysis is purely factual or procedural without\n citing specific legal authority.\n\nFor each entry:\n- `area_code`: choose the single best area for the provision.\n- `area_label`: the corresponding label (e.g., \"Constitution\", \"Federal Statute\").\n- `provision_text`: identify the specific provision (e.g., \"Fourth Amendment, search and seizure\",\n \"42 U.S.C. § 1983\", \"Federal Rule of Civil Procedure 12(b)(6)\", \"state tort law\").\n\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\n\nDistinguishing area codes:\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\n- Use 5 for common law doctrines that are not codified in any statute or rule.\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\n\n\n3.6 Decision Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\nCRITICAL: The codes \"conservative\" and \"liberal\" are MECHANICAL LABELS defined by the SCDB\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\nTaxation case, regardless of the policy context. A decision upholding a government regulation\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\nbusiness. Do NOT let your general understanding of politics override these rules.\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\n\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\n\nissue_area.code | benefiting side | direction\n----------------|------------------------------------------------------------|----------\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\n | regulation, or small entities against large business |\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\n10 (Federalism) | federal authority over state authority | 2 (liberal)\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\n | with one of the patterns above |\n\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\nissue_area, and LAST look up the decision_direction from the table above by matching the\nissue_area.code with the side that benefited. Do NOT reason about direction from first\nprinciples — use the table.\n\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\n\n\n3.6.1 Worked Examples\n\nThe following three examples demonstrate correct mechanical application of the direction\nlookup table, including cases where the SCDB coding may seem counterintuitive:\n\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\n\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\n\n Coding:\n issue_area.code = 12 (Federal Taxation)\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\n says \"taxpayer → 1 (conservative)\"\n\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\n codes this as conservative (1) because the taxpayer benefited.\n\n\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\n\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\n\n Coding:\n issue_area.code = 1 (Criminal Procedure)\n winning_party.code = 0 (no favorable disposition for petitioner)\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\n row for code 1 says \"prosecution → 1 (conservative)\"\n\n\nEXAMPLE C — Economic Activity (issue_area.code = 8)\n\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\n affirms, upholding the regulation as within the agency's statutory authority.\n\n Coding:\n issue_area.code = 8 (Economic Activity)\n winning_party.code = 0 (no favorable disposition for petitioner/company)\n decision_direction = 2 (liberal) ← government regulation upheld against business;\n lookup table row for code 8 says \"govt regulation → 2 (liberal)\"\n\n NOTE: Even if one might view upholding a regulation as a \"pro-business\" outcome (e.g., it\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\n over a business challenge as liberal (2).\n\n\n3.6.2 Internal Consistency Check\n\nBefore you output the JSON, you MUST run the following consistency check:\n\n1. Identify issue_area.code.\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\n4. Verify that your decision_direction.code matches the table entry.\n5. If it does not match, CORRECT decision_direction.code to match the table.\n\n\n3.7 Lower Court Direction\n\nCodes:\n\n1 = conservative\n2 = liberal\n3 = unspecifiable\n\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\ncourt's judgment and the appellate court's disposition.\n\nUse this rule of thumb:\n\n1. First, identify the appellate disposition (case_disposition.code).\n2. Next, identify the decision_direction.code for the Court of Appeals.\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\n\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \"affirmed\"\n or 8 \"petition denied or appeal dismissed\"), then the lower court's direction is the SAME as decision_direction.code.\n\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \"reversed\",\n 3 \"reversed and remanded\", 4 \"vacated and remanded\", or 7 \"vacated\"), then the lower court's direction is the\n OPPOSITE of decision_direction.code.\n\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\n the lower court's direction should usually be the SAME as decision_direction.code.\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\n\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\n the lower court if possible; if not, use 3 (unspecifiable).\n\nWhen you set lower_court_direction, remember:\n- \"SAME\" means lower_court_direction.code = decision_direction.code.\n- \"OPPOSITE\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\n\n3.8 Declaration of Unconstitutionality\n\nCodes:\n\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\n1 = the court DID declare a statute, regulation, or government action unconstitutional\n\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\nregulations, state statutes, state constitutional provisions, and local ordinances.\n\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\nhold that something is unconstitutional. If the court upholds the constitutionality of the\nchallenged provision, code 0.\n\n\n3.9 Method\n\nCodes:\n\n1 = standard panel decision (typically 3 judges, first hearing)\n2 = panel rehearing (same panel reconsidering its prior decision)\n3 = en banc (full court or en banc panel rehearing a case)\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\n\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\nstatements like \"before the court en banc,\" \"on rehearing,\" \"upon reconsideration,\" or\n\"per curiam.\" If the metadata indicates more than 3 judges participated, this strongly\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\n\n\n3.10 Who Appealed\n\nCodes:\n\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\n3 = federal government on behalf of the original plaintiff\n4 = federal government on behalf of the original defendant\n\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\nhistory. The \"original plaintiff\" is the party who filed suit in the lower court; the \"original\ndefendant\" is the party who was sued. In criminal cases, the original plaintiff is typically the\ngovernment (prosecution) and the original defendant is the accused.\n\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\nordering (appellant is typically listed first).\n\n\n3.11 Dissent/Concurrence Basis (Conditional)\n\nIf the case metadata states \"Has dissenting opinion: Yes\" or \"Has concurring opinion: Yes\",\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\n\nFor each dimension (procedural / merits), use one of these codes:\n\n0 = the dissent/concurrence exists but does NOT address this type of issue\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\n3 = addresses an issue NOT discussed by the majority opinion\n\n\"dissent_basis\" (include ONLY if \"Has dissenting opinion: Yes\"):\n - \"procedural\": Does the dissent address procedural questions (jurisdiction, standing,\n standard of review, procedural default, timeliness, etc.)?\n - \"merits\": Does the dissent address the substantive legal merits (statutory interpretation,\n constitutional analysis, factual sufficiency, etc.)?\n\n\"concurrence_basis\" (include ONLY if \"Has concurring opinion: Yes\"):\n - \"procedural\": Does the concurrence address procedural questions?\n - \"merits\": Does the concurrence address the substantive legal merits?\n\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\n(the longest or most substantive).\n\nIf the metadata says \"Has dissenting opinion: No\", OMIT \"dissent_basis\" entirely from your output.\nIf the metadata says \"Has concurring opinion: No\", OMIT \"concurrence_type\" and \"concurrence_basis\" entirely from your output.\n\n\n3.12 Concurrence Type (Conditional)\n\nIf the case metadata states \"Has concurring opinion: Yes\", classify the concurrence as one of\nthe following types:\n\nCodes:\n\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\n\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\n like \"concurring in the result,\" \"concurring in the judgment,\" \"concurring in the result\n only,\" or \"I concur in the judgment but write separately because I disagree with the\n majority's analysis.\" The key indicator: the judge explicitly declines to join the majority\n opinion or distances themselves from the majority's reasoning.\n\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\n the majority opinion or only the result.\n\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\nwrites a special concurrence is qualitatively different from one where all judges agree on\nboth outcome and reasoning.\n\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\nmost substantive). If one is a regular concurrence and another is a special concurrence,\ncode based on the special concurrence (code 2), as it is more analytically informative.\n\n\n==================================================\n4. GENERAL RULES\n==================================================\n\n- Use metadata (case name, court, date, opinion type) to:\n - distinguish main merits opinions from rehearing or procedural opinions,\n - interpret how the appellate disposition relates to the prior judgment,\n - infer whether the case is criminal, civil rights, tax, etc.\n- If some information is missing, use the appropriate \"unspecifiable\" or \"no disposition\" code\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\n- Carefully follow the steps laid out in the introduction in order. In particular,\n decide who won the case (winning_party). Then, decide what the issue_area is.\n Only choose decision_direction once you have completed those steps, and follow the exact\n directions in Section 3.6.\n- In the justification, explicitly state who won, why (according to the disposition), and\n how that winner and the issue_area code together implied the direction code you chose.\n Reference the DIRECTION LOOKUP TABLE row you applied.\n- ALWAYS choose exactly one code for each coded variable where required.\n- NEVER output any keys other than the ones defined in the schema above.\n- Include \"dissent_basis\", \"concurrence_type\", and \"concurrence_basis\" ONLY when the metadata\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\n- NEVER output any numeric codes outside the permitted lists above.\n\n\n==================================================\n5. FINAL REQUIREMENT\n==================================================\n\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\n","role":"system"},{"content":"[CASE_METADATA]\nCase name: Managed Care Advisory Group, LLC v. Cigna Healthcare, Inc.\nCourt: U.S. Court of Appeals for the Eleventh Circuit\nDate decided: 2019-09-18\nOpinion type: majority\nHas dissenting opinion: No\nHas concurring opinion: No\nAdditional notes: \n\n[CASE_TEXT]\nCase: 17-13761 Date Filed: 09/18/2019 Page: 1 of 34\n\n\n [PUBLISH]\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT\n ________________________\n\n No. 17-13761\n ________________________\n\n D.C. Docket No. 1:00-md-01334-FAM\n\n\n\nMANAGED CARE ADVISORY GROUP, LLC,\n\n Plaintiff - Appellee,\n\n\n versus\n\n\nCIGNA HEALTHCARE, INC.,\n\n Defendant - Appellant,\n\nEPIQ SYSTEMS, INC.,\nDAVID GARCIA,\nNEIL MANNING,\nIMEDECS,\nMILLENNIUM HEALTHCARE CONSULTING, INC.,\nMARY FALBO,\n\n Interested Parties - Appellants.\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 2 of 34\n\n\n ________________________\n\n Appeals from the United States District Court\n for the Southern District of Florida\n ________________________\n\n (September 18, 2019)\n\nBefore JILL PRYOR and BRANCH, Circuit Judges, and REEVES,* District\nJudge.\n\nPER CURIAM:\n\n Medical providers filed several class action lawsuits against managed care\n\ninsurance companies, including CIGNA Healthcare, Inc. (“CIGNA”). These\n\nactions alleged that the insurers improperly processed and rejected certain\n\nphysicians’ claims for payment. The actions were consolidated into Multidistrict\n\nLitigation (“MDL”) before the United States District Court for the Southern\n\nDistrict of Florida. The class and CIGNA reached a settlement after extensive\n\nlitigation and the district court subsequently approved the parties’ Settlement\n\nAgreement.\n\n Following the settlement, Managed Care Advisory Group, LLC (“MCAG”),\n\nacting on behalf of class members, entered into an arbitration agreement with\n\nCIGNA in an attempt to resolve a dispute over a portion of the settlement funds.\n\n\n\n *\n The Honorable Danny C. Reeves, United States Chief District Judge for the Eastern\nDistrict of Kentucky, sitting by designation.\n\n 2\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 3 of 34\n\n\nThe Settlement Agreement did not provide for arbitration and MCAG was not a\n\nparty to it. Instead, MCAG claimed to represent class members who were parties\n\nto the Settlement Agreement. The arbitrator summonsed the settlement claims\n\nadministrator and independent review entities (“IREs”) 1 to appear for a live\n\nhearing and video conference and to bring with them certain documents. MCAG\n\nfiled a motion to enforce the arbitral summonses in the district court approximately\n\nthree years after it had closed all proceedings involving the MDL. CIGNA\n\nresponded to MCAG’s motion to enforce the arbitral summonses with a motion to\n\nstrike the summonses. The district court referred the matter to a magistrate judge\n\nwho denied CIGNA’s motion and granted MCAG’s request to enforce the\n\nsummonses. CIGNA and the summonsed parties appealed the magistrate judge’s\n\ndecision to the district court and, at the district court’s suggestion, CIGNA filed a\n\nmotion to enforce the settlement and compel an accounting.\n\n The district court affirmed the magistrate judge’s decision, enforcing the\n\narbitral summonses, but denied CIGNA’s motion to enforce the Settlement\n\nAgreement and compel an accounting stating, “[t]he Arbitrator shall be allowed to\n\narbitrate the claims in the manner he sees fit.” After careful review of the record\n\n\n\n\n 1\n The IREs are organizations selected by mutual agreement of counsel for the parties to\nthe Settlement Agreement. Their role is to review CIGNA’s disposition of insurance claims\nsubmitted pursuant to the Settlement Agreement.\n 3\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 4 of 34\n\n\nand with the benefit of oral argument, we reverse enforcement of the arbitral\n\nsummonses. Additionally, we reverse and remand the denial of the motion to\n\nenforce the Settlement Agreement and compel an accounting to the extent that it\n\nrelates to a portion of settlement funds previously paid.\n\n I. BACKGROUND\n\n Medical providers filed several class actions against managed care insurance\n\ncompanies, including CIGNA, starting in 1999. The matters were consolidated\n\ninto an MDL proceeding in the United States District Court for the Southern\n\nDistrict of Florida in April 2000. MCAG was not a party, class member, or class\n\ncounsel in any of the lawsuits consolidated into the MDL, nor was it a party to the\n\nMDL itself. The parties later moved for preliminary approval of a settlement, and\n\nthe district court granted their request.\n\n The district court approved the settlement on January 30, 2004, following a\n\nclass action fairness hearing. The court noted, however, that it retained jurisdiction\n\nfor “all matters relating to [] the interpretation, administration, and consummation\n\nof the Agreement . . . .” The settlement included monetary relief to the class\n\nmembers as well as the ability to either (1) participate in a $30,000,000 fund that\n\nwould be distributed to class members or (2) seek recovery from an uncapped fund\n\nfor claims that were previously denied or reduced. As relevant to this appeal,\n\n“Category Two” claims sought recovery from the uncapped fund. To seek\n 4\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 5 of 34\n\n\ncompensation for Category Two claims, the class members would submit their\n\nclaims to the settlement administrator, who would forward them to CIGNA upon\n\nverification that the claim was accompanied by sufficient supporting documents.\n\nIf CIGNA determined that a claim was not payable, it would be reviewed by the\n\nindependent settlement administrator or the IRE (collectively, “the Reviewers”),\n\ndepending on the reason for the denial. After evaluating these claims, the\n\nReviewers would make a final, independent decision regarding whether the claims\n\nshould be paid.\n\n Class member Texas Children’s Pediatric Associates (“TCPA”) moved for\n\nenforcement of the settlement on July 14, 2005, asserting that CIGNA obstructed\n\nthe process for Category Two claims, causing the Reviewers to improperly process\n\nclaims. TCPA requested in the motion for enforcement of the settlement that the\n\ndistrict court direct CIGNA to pay its claims. However, TCPA subsequently\n\nwithdrew its motion on November 16, 2005, noting that MCAG and CIGNA\n\nagreed to binding arbitration of the matter.\n\n The notice of withdrawal indicated that the parties agreed that the district\n\ncourt “should, consistent with the Settlement Agreement, Final Judgment and the\n\nArbitration Agreement, retain jurisdiction over the parties and this matter for\n\npurposes of confirming, modifying and/or vacating that Arbitration Award (as well\n\nas any pre-Award decisions) in accordance with the FAA [Federal Arbitration\n 5\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 6 of 34\n\n\nAct].” However, the Settlement Agreement did not require arbitration and did not\n\nhave an arbitration provision. Instead, the arbitration agreement between CIGNA\n\nand MCAG was separate and apart from the Settlement Agreement, to which\n\nMCAG was not a party. The Reviewers were not parties to the binding arbitration\n\nand the arbitration agreement was solely between MCAG and CIGNA.2\n\n During the arbitration, the arbitrator required CIGNA to allow reprocessing\n\nof certain claims; however, problems supposedly arose. The arbitrator issued non-\n\nparty summonses to the following third parties requiring them to participate in the\n\narbitration hearing: (1) Epiq, the settlement administrator; (2) David Garcia, a\n\nproject director at Epiq; (3) Neil Manning, an ex-employee of Epiq; (4)\n\nIMEDECS/Millennium Healthcare Consulting, Inc., the IRE; and (5) Mary Falbo,\n\nthe IRE’s founder and CEO (collectively, “the summonsed parties”).\n\n The summonses directed the summonsed parties to appear by video. Some\n\nalso required the summonsed parties to produce documents. Federal district courts\n\nwhere the summonsed parties were located issued corresponding subpoenas. Upon\n\nreceipt, however, the summonsed parties objected to the summonses and indicated\n\nthey would not comply without an order compelling them to do so. On September\n\n2, 2016, MCAG moved the district court to enforce the arbitration summonses\n\n\n 2\n The district court, sua sponte, closed the MDL on September 9, 2013, because it\nconcluded all the associated cases had been closed.\n 6\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 7 of 34\n\n\npursuant to 9 U.S.C § 7. CIGNA then moved to strike MCAG’s motion to enforce\n\nthe summonses. IMEDECS, Millennium Healthcare Consulting, Inc., and Falbo\n\n(collectively, “IMEDECS”) filed a response in opposition to the motion to enforce.\n\nEpiq, Garcia, and Manning (collectively, “Epiq”) also filed a separate response in\n\nopposition.\n\n A magistrate judge held a hearing and concluded the court had jurisdiction\n\nto enforce the arbitration summonses because the district court judge “appointed\n\nthe arbitrator and he reserved jurisdiction to enforce the settlement agreement and\n\nthe parties agreed, in the arbitration agreement, . . . to the jurisdiction of the\n\nCourt.” The magistrate judge ruled directly on the pending motions by granting\n\nMCAG’s motion to enforce, while denying CIGNA’s motion to strike. CIGNA,\n\nEpiq, and IMEDECS challenged the magistrate judge’s rulings.\n\n The district court held a status conference, and CIGNA subsequently moved\n\nto enforce the Settlement Agreement and compel an accounting as suggested by\n\nthe district court. CIGNA alleged MCAG mismanaged settlement funds totaling\n\nover $25 million, which CIGNA had paid to MCAG for the benefit of the class\n\nmembers. CIGNA made two types of payments to MCAG. First, prior to\n\narbitration, CIGNA paid a total of approximately $11 million to MCAG for class\n\nmembers’ claims that were not the subject of arbitration. Second, during\n\narbitration, CIGNA paid an additional $14 million for class members’ Category\n 7\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 8 of 34\n\n\nTwo claims. CIGNA paid these funds to MCAG solely for distribution to class\n\nmembers as required by the Settlement Agreement.\n\n The district court affirmed the magistrate judge’s order granting MCAG’s\n\nmotion to enforce the arbitral summonses and denied CIGNA’s motion to enforce\n\nthe Settlement Agreement and compel an accounting. It noted that “[t]he\n\nArbitrator shall be allowed to arbitrate the claims in the manner he sees fit.”\n\n CIGNA, Epiq, and IMEDECS appeal the district court order. Epiq and\n\nIMEDECS challenge the district court’s order enforcing the arbitral summonses.\n\nCIGNA appeals the district court’s denial of its motion to enforce the Settlement\n\nAgreement and compel an accounting.\n\n MCAG conceded during oral argument that: (1) it had not distributed all of\n\nthe funds CIGNA paid before the arbitration for claims that were not the subject of\n\nthe arbitration (despite MCAG’s previous assertion that it had distributed all of\n\nthese funds); (2) it had not distributed any of the settlement money paid by CIGNA\n\nfor Category Two claims since the arbitration commenced; and (3) only\n\napproximately $4.5 million remains of the settlement proceeds CIGNA paid to\n\nMCAG for class members’ Category Two claims. Additionally, MCAG conceded\n\nthat it was obligated to pay the class members shortly after receiving payment from\n\nCIGNA.\n\n\n 8\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 9 of 34\n\n\n Before oral arguments, this Court issued a jurisdictional question asking the\n\nparties to respond to two inquiries: (1) whether the district court order enforcing\n\nthe arbitration summonses was a final order, particularly in light of the fact that the\n\norder enforced summonses against third parties and is apparently a post-judgment\n\norder; and (2) whether the district court’s order denying CIGNA’s motion to\n\nenforce the Settlement Agreement and to compel an accounting was final in light\n\nof the district court’s reasoning that CIGNA’s claims would instead be handled by\n\nthe arbitrator. CIGNA, Epiq, and IMEDECS responded that the orders were final\n\nand appealable, while MCAG contended the orders were not final and appealable.\n\n II. STANDARDS OF REVIEW\n\n A district court’s decision regarding personal jurisdiction is reviewed de\n\nnovo. Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir.\n\n2013). Additionally, a district court’s decision that it has subject matter\n\njurisdiction to hear a motion to enforce arbitral summonses is also reviewed de\n\nnovo. Doe v. Fed. Aviation Admin., 432 F.3d 1259, 1261 (11th Cir. 2005). This\n\nCourt has not explicitly established a standard of review for a district court’s\n\nenforcement of arbitral summonses. However, whether an agency had authority to\n\nissue an administrative subpoena and a district court’s interpretation and\n\napplication of a statute are reviewed de novo. United States v. Fla. Azalea\n\nSpecialists, 19 F.3d 620, 622 (11th Cir. 1994); Alexander v. Hawk, 159 F.3d 1321,\n 9\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 10 of 34\n\n\n1323 (11th Cir. 1998). Further, a district court’s decision to enforce or quash a\n\nsubpoena is reviewed for abuse of discretion. In re Hubbard, 803 F.3d 1298, 1307\n\n(11th Cir. 2015). A district court’s decision to deny the equitable remedy of\n\naccounting is also reviewed for abuse of discretion. Zaki Kulaibee Establishment\n\nv. McFliker, 771 F.3d 1301, 1310 (11th Cir. 2014).\n\n Finally, this Court reviews a district court’s interpretation of a settlement\n\nagreement de novo, and decisions regarding motions to enforce settlements for\n\nabuse of discretion. In re Managed Care, 756 F.3d 1222, 1232 (11th Cir. 2014);\n\nResnick v. Uccello Immobilien GMBH, Inc., 227 F.3d 1347, 1350 (11th Cir. 2000).\n\n“An error of law is an abuse of discretion per se.” Resnick, 227 F.3d at 1350\n\n(citing Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000)).\n\n III. ANALYSIS\n\n A. Finality of the Order Enforcing Arbitral Summonses\n\n The district court’s order enforcing the arbitral summonses is a final and\n\nappealable order. The FAA allows an appeal from “a final decision with respect to\n\nan arbitration that is subject to this title.” 9 U.S.C. § 16(a)(3). The Supreme Court\n\nhas interpreted this section according to the “well-developed and longstanding\n\nmeaning” of a “final decision.” Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S.\n\n79, 86, 121 S. Ct. 513, 519, 148 L. Ed. 2d 373 (2000). A final decision “ends the\n\n\n 10\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 11 of 34\n\n\nlitigation on the merits and leaves nothing more for the court to do but execute the\n\njudgment.” Id. (internal quotation marks omitted).\n\n An arbitrator may summons an individual to attend the arbitration as a\n\nwitness. 9 U.S.C. § 7. But if the individual who was summonsed to testify refuses\n\nto attend, the aggrieved party may petition the United States district court to\n\ncompel the attendance of the individual refusing to attend. Id. The district court\n\nmust be in the district where the arbitrator sits and may compel attendance “in the\n\nsame manner provided by law for securing the attendance of witnesses . . . in the\n\ncourts of the United States.” Id. Rule 45(b) of the Federal Rules of Civil\n\nProcedure provides the manner of serving subpoenas before the court and states\n\nthat “[a] subpoena may be served at any place within the United States.” Fed. R.\n\nCiv. P. 45(b)(2).\n\n The district court’s order enforcing the arbitration summonses is a post-\n\njudgment order. Generally, a post-judgment order is final if it disposes of all the\n\nissues raised in the motion that initiated the post-judgment proceedings. Mayer v.\n\nWall St. Equity Grp., Inc., 672 F.3d 1222, 1224 (11th Cir. 2012). However, there\n\nis authority holding that interlocutory orders denying motions to quash third-party\n\nsubpoenas and post-judgment orders compelling discovery are not appealable.\n\nDrummond Co. v. Terrance P. Collingsworth, Conrad & Scherer, LLP, 816 F.3d\n\n1319, 1322, 1325-27 (11th Cir. 2016); Rouse Constr. Int’l. Inc. v. Rouse Constr.\n 11\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 12 of 34\n\n\nCorp., 680 F.2d 743, 745-46 (11th Cir. 1982). This case is distinguishable,\n\nhowever.\n\n Drummond and Rouse did not consider orders under § 7.3 Instead,\n\nDrummond states the general rule that a final order “is one by which a district court\n\ndisassociates itself from the case.” 816 F.3d at 1322. In other words, “[i]t ends the\n\nlitigation on the merits and leaves nothing more for the court to do but execute the\n\njudgment.” Id. (internal quotation marks omitted). The Court noted, in the context\n\nof a civil litigation subpoena, “[d]iscovery orders are ordinarily not final orders\n\nthat are immediately appealable.” Id. (internal quotation marks omitted). Rouse\n\nstates, “As a general proposition most orders granting or denying discovery are not\n\nfinal orders . . . and therefore are not immediately appealable.” 680 F.2d at 745.\n\n Also, in Drummond and Rouse, the district courts were overseeing\n\ndiscovery. After discovery concluded, the cases were almost certainly going to\n\nreturn to the district court for litigation on the merits (Drummond) or for\n\nverification that Rouse Construction Corp. was complying with the arbitration\n\naward (Rouse). In contrast, the district court’s order in the present case enforcing\n\nthe arbitral summonses sends the litigants back to the standalone arbitration\n\n\n\n 3\n Drummond concerned an order denying a motion to quash a subpoena pursuant to Rule\n45(d)(3)(A) of the Federal Rules of Civil Procedure. 816 F.3d at 1322. Rouse addressed a\ndistrict court order granting a post-judgment motion to compel discovery pursuant to Rules 37(a)\nand 69(a) of the Federal Rules of Civil Procedure. 680 F.2d at 744 & n.2, 745 & n.4.\n 12\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 13 of 34\n\n\nproceeding, and the district court has disposed of everything pending before it. If\n\nMCAG or CIGNA wants the district court to review the arbitration award later on,\n\nthey will have to submit a separate application to the district court. 9 U.S.C. §§ 9-\n\n11.\n\n The Second and Seventh Circuits have determined that they possess\n\njurisdiction under 9 U.S.C. § 16(a)(3) regarding orders compelling compliance\n\nunder 9 U.S.C. § 7. See Dynegy Midstream Servs. v. Trammochem, 451 F.3d 89,\n\n92-94 (2d Cir. 2006); Amgen, Inc. v. Kidney Ctr. of Del. Cty., Ltd., 95 F.3d 562,\n\n565-67 (7th Cir. 1996). The Second Circuit concluded it had jurisdiction in\n\nDynegy because the “litigation to enforce the subpoena [was] an entirely self-\n\ncontained court proceeding, and the court’s order compelling compliance\n\ncompletely disposed of the case, leaving nothing more for the court to do but\n\nenforce the judgment.” 451 F.3d at 93. And in Amgen, the Seventh Circuit noted\n\nthat, “[w]hen the district court confirmed the arbitrator’s authority to issue the\n\nsummons and when it identified a mechanism to compel compliance with that\n\nsummons, it disposed of all the issues before it.” 95 F.3d at 567.\n\n Here, the district court confirmed the arbitrator’s authority to issue the\n\nsummonses and identified a way to compel compliance with them. Accordingly,\n\nthis Court has jurisdiction because the district court order enforcing the summonses\n\ndisposed of all the issues before it. See Mayer, 672 F.3d at 1224.\n 13\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 14 of 34\n\n\n Notwithstanding the district court’s disposition of the motion, it retained\n\njurisdiction to review the arbitrator’s decision. The FAA permits “parties to\n\narbitration agreements to bring a separate proceeding in a district court to enter\n\njudgment on an arbitration award once it is made (or to vacate or modify it), but\n\nthe existence of that remedy does not vitiate the finality of the [d]istrict [c]ourt’s\n\nresolution of the claims in the instant proceeding.” Green Tree, 531 U.S. at 86,\n\n121 S. Ct. at 520 (citing 9 U.S.C. §§ 9, 10, 11). Thus, the district court order was\n\nfinal and its retention of jurisdiction to review the arbitrator’s decision does not\n\ndestroy the finality of the district court’s ruling pertaining to the enforcement of the\n\narbitral summonses. See id.\n\n B. Order Allowing Nationwide Arbitral Summons\n\n i. Subject Matter Jurisdiction\n\n “[T]his court has the obligation to inquire into subject matter jurisdiction\n\nwhenever it may be lacking.” Baltin v. Alaron Trading Corp., 128 F.3d 1466,\n\n1468 (11th Cir. 1997). When a federal court otherwise lacks jurisdiction, it may\n\npossess ancillary jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am.,\n\n511 U.S. 375, 379, 114 S. Ct. 1673, 1676, 128 L. Ed. 2d 391 (1994).\n\n The district court properly determined that it had ancillary jurisdiction over\n\nthe motion to enforce the summonses. However, the magistrate judge improperly\n\nfound jurisdiction on two additional grounds: (1) the district court appointed the\n 14\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 15 of 34\n\n\narbitrator; and (2) the parties agreed to jurisdiction of the district court in their\n\narbitration agreement. The first additional ground is an error of law because\n\nappointing an arbitrator pursuant to the FAA does not provide jurisdiction. Cf.\n\nHall St. Assoc., L.L.C. v. Mattel, Inc., 552 U.S. 578, 581-82, 128 S. Ct. 1396, 1400,\n\n1402, 170 L. Ed. 2d 254 (2008). The second additional ground also constitutes an\n\nerror of law because jurisdiction cannot be created by an agreement between\n\nparties. Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261 (11th Cir. 2000).\n\n While the FAA “creates a body of federal substantive law establishing and\n\nregulating the duty to honor an agreement to arbitration, [] it does not create any\n\nindependent federal-question jurisdiction under 28 U.S.C. § 1331 [] or otherwise.”\n\nMoses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 n.32, 103 S.\n\nCt. 927, 942 n.32, 74 L. Ed. 2d 765 (1983); see also Hall, 552 U.S. at 581-82, 128\n\nS. Ct. at 1402. However, the magistrate judge did not hold that the district court\n\nhad federal question jurisdiction. He instead held that the district court had\n\nancillary jurisdiction because it retained jurisdiction over the settlement agreement.\n\n Ancillary jurisdiction applies when necessary “to enable a court to function\n\nsuccessfully, that is, to manage its proceedings, vindicate its authority, and\n\neffectuate its decrees.” Kokkonen, 511 U.S. at 380, 114 S. Ct. at 1676. If a court\n\nretains jurisdiction over a settlement agreement, it retains ancillary jurisdiction to\n\nenforce the agreement. Id. at 381.\n 15\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 16 of 34\n\n\n The district court retained jurisdiction “as to all matters relating to [] the\n\ninterpretation, administration, and consummation of the Agreement.” Because the\n\ndistrict court retained jurisdiction concerning matters related to the administration\n\nof the Settlement Agreement, it retained jurisdiction over the distribution of\n\nCategory Two claims. The arbitration involves disputes regarding distribution of\n\nCategory Two claims, so the district court has ancillary jurisdiction over the\n\narbitration.\n\n While MCAG was not a party to the Settlement Agreement, the Settlement\n\nAgreement contained no provision for arbitration, and the summonsed parties were\n\nnot parties to the arbitration agreement, the purpose of the arbitration was to\n\nresolve disputes involving Category Two claims that arose out of the Settlement\n\nAgreement, and the subpoenas issued to the summonsed parties were for the\n\npurpose of determining whether Category Two claims as provided in the\n\nSettlement Agreement were payable.\n\n Accordingly, the district court’s determination that it had ancillary\n\njurisdiction is appropriate because the arbitration and arbitral summonses “relat[ed]\n\nto” the Settlement Agreement in which the district court retained jurisdiction.4\n\n\n 4\n CIGNA protests that MCAG lacks standing because it has breached its fiduciary duties\nto class members it purports to represent. Though CIGNA invokes the language of standing, its\nstanding argument is a recharacterization of its arguments for why the district court should have\ngranted its motion to enforce the Settlement Agreement and compel an accounting. We address\nthat motion below in Part III.D.\n 16\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 17 of 34\n\n\n ii. Personal Jurisdiction\n\n “Before a federal court may exercise personal jurisdiction over a defendant,\n\nthe procedural requirement of service of summons must be satisfied.” Omni\n\nCapital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S. Ct. 404, 409,\n\n98 L. Ed. 2d 415 (1987). Section 7 of the FAA allows nationwide service of\n\narbitral summonses. In the present case, the magistrate judge stated, “I find that as\n\nfar as personal jurisdiction because it [referring to the service of arbitral\n\nsummonses] is allowed throughout the United States that that meets the personal\n\njurisdiction needs.”\n\n “[I]n interpreting a statute a court should always turn first to one, cardinal\n\ncanon before all others . . . . [C]ourts must presume that a legislature says in a\n\nstatute what it means and means in a statute what it says there.” Conn. Nat’l Bank\n\nv. Germain, 503 U.S. 249, 253-54, 112 S. Ct. 1146, 1149, 117 L. Ed. 2d 391\n\n(1992). “When the words of a statute are unambiguous, then, this first canon is\n\nalso the last: judicial inquiry is complete.” Id. (internal quotation marks omitted).\n\n The words of 9 U.S.C. § 7 are unambiguous, so the plain meaning must be\n\nused. Two concepts are addressed in 9 U.S.C. § 7. First, it addresses service of\n\narbitral summonses. Next, it addresses compelling enforcement of arbitral\n\nsummonses. These concepts are addressed in turn.\n\n a. Service of Arbitral Summonses\n 17\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 18 of 34\n\n\n Title 9 of the United States Code, Section 7, states that arbitral summonses\n\n“shall be served in the same manner as subpoenas to appear and testify before the\n\ncourt . . . .” Without specifically citing the rule by name, this provision references\n\nRule 45 of the Federal Rules of Civil Procedure. Rule 45 governs the service of\n\nsubpoenas and states that “[a] subpoena may be served at any place within the\n\nUnited States.” Fed. R. Civ. P. 45(b)(2). Thus, under 9 U.S.C. § 7, the FAA\n\npermits nationwide service of arbitral summonses.\n\n The appellants contend that the Second Circuit has held that Section 7 of the\n\nFAA does not authorize nationwide service of process. Dynegy, 451 F.3d at 94-96.\n\nHowever, the Second Circuit issued its opinion in Dynegy in 2006, well before\n\nRule 45 was amended in 2013 to provide for nationwide service of subpoenas.\n\nFed. R. Civ. P. 45 advisory committee’s note to 2013 amendment. “When a statute\n\nadopts the general law on a given subject, the reference is construed to mean that\n\nthe law is as it reads thereafter at any given time including amendments subsequent\n\nto the time of adoption.” Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1352\n\n(5th Cir. 1980) (quoting Dir., Office of Workers’ Comp. Programs v. Peabody\n\nCoal Co., 554 F.2d 310, 322 (7th Cir. 1977)); see also Jam v. Int’l Fin. Corp.,\n\n__ U.S. __, 139 S. Ct. 759, 769, 203 L. Ed. 2d 53 (2019) (“[W]hen a statute refers\n\nto a general subject, the statute adopts the law on that subject as it exists whenever\n\na question under the statute arises.”). Conversely, when a statute references\n 18\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 19 of 34\n\n\n“limited and particular provisions of another statute,” it does not include\n\nsubsequent amendments. Longmire, 610 F.2d at 1352; see also Jam, __ U.S. __,\n\n139 S. Ct. at 769 (“[A] statute that refers to another statute by specific title or\n\nsection number in effect cuts and pastes the referenced statute as it existed when\n\nthe referring statute was enacted, without any subsequent amendments.”).\n\n Further, Jam states that “a general reference to federal discovery rules\n\nincorporates those rules ‘as they are found on any given day, today included.’” Id.\n\n(quoting El Encanto, Inc. v. Hatch Chile Co., 825 F.3d 1161, 1164 (10th Cir. 2016)\n\n(specifying that the reference to Rule 45 in 35 U.S.C. § 24 is a general reference\n\nand refers to Rule 45 as it is today)). Because Section 7 of the FAA contains a\n\ngeneral reference to Rule 45 by requiring subpoenas to be “served in the same\n\nmanner as subpoenas to appear and testify before the court,” it incorporates\n\nsubsequent changes to Rule 45, including the 2013 amendment permitting\n\nnationwide service. The incorporation of the 2013 amendment to Rule 45\n\npermitting nationwide service therefore distinguishes the present case from the\n\nSecond Circuit’s holding in Dynegy. Accordingly, we conclude that nationwide\n\nservice of arbitral summonses is appropriate.\n\n b. Compelling Enforcement of Arbitral Summonses\n\n Section 7 of the FAA also addresses compelling the enforcement of arbitral\n\nsummonses when a summonsed party fails to comply. The section states that if a\n 19\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 20 of 34\n\n\nperson refuses to comply with an arbitral summons, a court “may compel the\n\nattendance of such person . . . in the same manner provided by law for securing the\n\nattendance of witnesses . . . in the courts of the United States.” 9 U.S.C. § 7.\n\nAgain, without specifically citing the rule by name, this provision references Rule\n\n45 of the Federal Rules of Civil Procedure. Rule 45 governs securing the\n\nattendance of witnesses and states that “the serving party may move the court for\n\nthe district where compliance is required for an order compelling production or\n\ninspection.” Fed. R. Civ. P. 45(d)(2)(B)(i). However, 9 U.S.C. § 7 provides that\n\nthe district court for the district in which the arbitrators are sitting may compel the\n\nattendance of a person refusing to obey an arbitral summons.\n\n Initially, it appears that 9 U.S.C. § 7 and Rule 45 are inconsistent because\n\nRule 45 requires the motion to be filed in the district where compliance is required,\n\nwhile 9 U.S.C. § 7 requires the motion to be filed in the district where the\n\narbitrators sit. Ultimately however, this inconsistency is avoided because 9 U.S.C.\n\n§ 7 simply states that compelling attendance must be done in the same manner\n\nprovided by law (i.e., filing a motion) and does not incorporate Rule 45 regarding\n\nwhere motions to compel must be filed. As a result, we conclude that the plain\n\nmeaning of 9 U.S.C. § 7 requires that a motion to compel must be filed in the\n\ndistrict in which the arbitrators are sitting.\n\n iii. Fifth Amendment\n 20\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 21 of 34\n\n\n Even if a statute authorizes nationwide service of process, due process\n\nrequires that the district court evaluate traditional notions of fairness and\n\nreasonableness, by weighing the burdens imposed on the summonsed parties\n\nagainst the federal interest, before exercising personal jurisdiction. Republic of\n\nPanama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 946, 948 (11th Cir.\n\n1997). However, when nationwide service is involved, “it is only in highly\n\nunusual cases that inconvenience will rise to a level of constitutional concern.” Id.\n\nat 938-39, 947. Further, we need to balance the federal interest against the burdens\n\nimposed on the summonsed parties only if they have “established that [their]\n\nliberty interests actually have been infringed” and that “jurisdiction in the forum\n\nwill make litigation so gravely difficult and inconvenient that [they] unfairly [are]\n\nat a severe disadvantage in comparison to [their] opponent.” Id. at 946, 948\n\n(internal quotation marks omitted).\n\n The summonsed parties in this case assert that requiring non-parties to travel\n\nto distant jurisdictions to defend against arbitral summonses serves no federal\n\npurpose and that exercising jurisdiction is neither fair nor reasonable. However,\n\n“[t]here is nothing inherently burdensome about crossing a state line.” Id. at 946.\n\nFurther, the summonsed parties have not shown that the inconvenience of traveling\n\nin the present case to litigate their objections to the arbitral summonses rises to the\n\nlevel of constitutional concern. Accordingly, the Court need not consider whether\n 21\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 22 of 34\n\n\nthe “federal interest in litigating the dispute in the chosen forum outweighs the\n\nburden imposed” on the summonsed parties. Id. at 948.\n\n iv. Pre-Hearing Discovery from Non-Parties\n\n As previously explained, the summonsed parties are non-parties to the\n\narbitration agreement. Arbitration is a creature of contract and “an arbitrator’s\n\nauthority over the parties to an arbitration is limited by the contours of the parties’\n\nagreement and those enumerated in the [FAA].” Kennedy v. Am. Express Travel\n\nRelated Servs. Co., 646 F. Supp. 2d 1342, 1343 (S.D. Fla. 2009). Non-parties to an\n\narbitration agreement have not subjected themselves to the authority of an\n\narbitrator and, therefore, have not limited their rights beyond the FAA.\n\nAccordingly, the authority for an arbitrator to summons non-parties to produce pre-\n\nhearing discovery must be found within the FAA.\n\n Section 7 of the FAA allows an arbitrator to “summon in writing any person\n\nto attend before them . . . as a witness and in a proper case to bring with him . . .\n\nany book, record, document, or paper which may be deemed material as evidence\n\nin the case.” 9 U.S.C. § 7. In Hay Group, Inc. v. E.B.S. Acquisition Corp.,\n\n360 F.3d 404, 407 (3d Cir. 2004), then-Judge Alito found that the plain language\n\nof Section 7 “unambiguously restricts an arbitrator’s subpoena power to situations\n\nin which the non-party has been called to appear in the physical presence of the\n\narbitrator and to hand over the documents at that time.” The Second, Fourth, and\n 22\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 23 of 34\n\n\nNinth Circuits have reached similar conclusions that Section 7 is unambiguous and\n\ndoes not provide arbitrators with the authority to order non-parties to provide\n\ndocuments outside of the presence of the arbitrator. Life Receivables Tr. v.\n\nSyndicate 102 at Lloyds of London, 549 F.3d 210, 216 (2d Cir. 2008) (“The\n\nlanguage of section 7 is straightforward and unambiguous. Documents are only\n\ndiscoverable in arbitration when brought before arbitrators by a testifying\n\nwitness.”); COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d 269, 275-76 (4th Cir.\n\n1999) (arbitral summons powers are “limited to those created by the express\n\nprovisions of the FAA,” which do not include “the authority to order non-parties to\n\n. . . provide the litigating parties with documents during prehearing discovery,” but\n\na party may petition the court for pre-hearing discovery upon a showing of\n\nnecessity); CVS Health Corp. v. Vividus, LLC, 878 F.3d 703, 708 (9th Cir. 2017)\n\n(“[S]ection 7 of the FAA does not grant arbitrators the power to order third parties\n\nto produce documents prior to an arbitration hearing.”). However, the Eighth\n\nCircuit has held that while Section 7 does not “explicitly authorize the arbitration\n\npanel to require the production of documents for inspection by a party[,] . . .\n\nimplicit in an arbitration panel’s power to subpoena relevant documents for\n\nproduction at a hearing is the power to order the production of relevant documents\n\n\n\n\n 23\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 24 of 34\n\n\nfor review by a party prior to the hearing.” 5 In re Sec. Life Ins. Co. of Am.,\n\n228 F.3d 865, 870-71 (8th Cir. 2000).\n\n After analyzing these cases, we agree with the Second, Third, Fourth, and\n\nNinth Circuits and hold that the plain language of the statute is unambiguous in\n\nrequiring witnesses to appear before an arbitrator and bring any documents with\n\nthem, thus prohibiting pre-hearing discovery from non-parties. The FAA confers\n\nthe power to compel a non-party to attend an arbitration hearing and bring\n\ndocuments, but it is silent regarding the power to compel documents from non-\n\nparties without summoning the non-party to testify. See 9 U.S.C. § 7. Thus, the\n\nFAA implicitly withholds the power to compel documents from non-parties\n\nwithout summoning the non-party to testify. And if Congress intended the\n\narbitrators to have the broader power to compel documents from non-parties\n\nwithout summoning the non-party to testify, it could have said so. Accordingly,\n\nwe conclude that 9 U.S.C. § 7 does not permit pre-hearing depositions and\n\ndiscovery from non-parties.\n\n We respectfully decline to follow the Eighth Circuit’s reasoning that the\n\n“interest in efficiency is furthered by permitting a party to review and digest\n\n\n 5\n The Sixth Circuit has also authorized a subpoena to a non-party for pre-hearing\ndocuments, but while the court looked to the FAA for guidance in the labor arbitration case, its\nholding was limited to Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C.\n§ 185. Am. Fed’n of Tel. & Radio Artists, AFL-CIO v. WJBK-TV, 164 F.3d 1004, 1009 (6th Cir.\n1999).\n 24\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 25 of 34\n\n\nrelevant documentary evidence prior to the arbitration hearing.” In re Sec. Life Ins.\n\nCo. of Am., 228 F.3d at 870-71. Simply put, because the plain meaning of the\n\nstatute does not permit pre-hearing discovery from non-parties, the policy\n\nargument does not supersede the text of the statute.\n\n The summonses issued in the present case indicate that the non-parties shall\n\nattend a hearing before the arbitrator. The hearing will be held in Miami, Florida,\n\nbut the testimony of the non-parties will be taken in their respective locations\n\nacross the country and transmitted via video conference. Additionally, the\n\nsummonses directed the non-parties to bring certain documents to the video\n\nconference.\n\n The first issue with the summonses is that the non-parties will not be in the\n\nphysical presence of the arbitrator. Instead, the arbitrator will be located in Miami\n\nwhile the non-parties are in their respective states, and the hearing will take place\n\nvia video conference. We hold that the district court abused its discretion in\n\naffirming the magistrate judge’s order granting Managed Care’s motion to compel\n\nthe non-parties to comply with the summonses because the district court lacked\n\nauthority under Section 7 to do so.\n\n “It’s a fundamental canon of statutory construction that words generally\n\nshould be interpreted as taking their ordinary meaning at the time Congress\n\nenacted the statute.” New Prime v. Oliveira, __ U.S. __, 139 S. Ct. 532, 539-40,\n 25\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 26 of 34\n\n\n202 L. Ed. 2d 536 (2019) (alterations adopted) (internal quotation marks omitted).\n\nCongress passed Section 7 in 1925, so we must ascertain the meaning of\n\n“attendance” and “before” in Section 7’s grant of authority to district courts to\n\n“compel the attendance of such person or persons before said arbitrator . . . in the\n\nsame manner provided by law for securing the attendance of witnesses . . . in the\n\ncourts of the United States” as of 1925.6 9 U.S.C. § 7 (emphasis added); see also\n\nOliveira, __ U.S. at __, 139 S. Ct. at 539-40 & 540 n.1 (looking to dictionaries\n\npublished in the decades surrounding 1925 to determine the meaning of “contracts\n\nof employment” in Section 1 of the FAA).\n\n Looking to dictionaries from the time of Section 7’s enactment makes clear\n\nthat a court order compelling the “attendance” of a witness “before” the arbitrator\n\nmeant compelling the witness to be in the physical presence of the arbitrator. In\n\n1925, “attendance” meant the “[a]ct of attending,” and “attend” meant “be present\n\nat.” See, e.g., H.W. Fowler & F.G. Fowler, The Concise Oxford Dictionary of\n\nCurrent English 52 (1926). Similarly, “before” meant “in [the] presence of.” Id.\n\nat 74. And “presence” meant “place where person is,” while “present” meant\n\n“[b]eing in the place in question.” Id. at 650. Thus, Section 7 does not authorize\n\ndistrict courts to compel witnesses to appear in locations outside the physical\n\n\n\n 6\n United States Arbitration Act, Pub. L. No. 68-401, § 7, 43 Stat. 883, 884 (1925).\n 26\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 27 of 34\n\n\npresence of the arbitrator, so the court may not enforce an arbitral summons for a\n\nwitness to appear via video conference.\n\n The second issue with the video conference concerns the production of\n\ndocuments. The summonses do not indicate how the arbitrator will view and\n\nconsider the documents brought by the non-parties to the video conference. The\n\ndistrict court and magistrate judge went beyond the directive of the summonses to\n\nindicate that a video conference is possible and permissible because documents can\n\nbe provided in advance to the attorneys and arbitrator, allowing the arbitrator to\n\nmake decisions as the evidence is presented. The fundamental problem with the\n\ndistrict court’s attempt at resolving the presentation of the documents is that\n\nproviding the necessary documents to the arbitrator and attorneys prior to the\n\nhearing constitutes pre-hearing discovery that is not authorized by the FAA. CVS\n\nHealth Corp., 878 F.3d at 708. Accordingly, the provision of documents prior to\n\nthe hearing is not the same as appearing in the physical presence of an arbitrator\n\nand bringing documents at the time of the hearing. As a result, this requirement is\n\nnot enforceable.\n\n “The [arbitrator’s] power to require a non-party to bring items with him\n\nclearly applies only to situations in which the non-party accompanies the items to\n\nthe arbitration proceeding, not to situations in which the items are simply sent or\n\nbrought by a courier.” Hay Grp., 360 F.3d at 407. We look beyond the plain\n 27\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 28 of 34\n\n\nlanguage of a statute only if applying the statute in accordance with the plain\n\nlanguage would lead to an absurd result. Consol. Bank, N.A. v. U.S. Dep’t of\n\nTreasury, 118 F.3d 1461, 1463-64 (11th Cir. 1997). Enforcing Section 7’s\n\nprohibition on pre-hearing discovery does not lead to an absurd result because it\n\nwill force the parties “to consider whether the documents are important enough to\n\njustify the time, money, and effort that the subpoenaing parties will be required to\n\nexpend if an actual appearance before an arbitrator is needed.” Hay Grp., Inc., 360\n\nF.3d at 409. This leads to a redistribution of bargaining power where “the party\n\nseeking the documents cannot simply obtain a subpoena requiring the documents\n\nto be shipped from one warehouse to another; instead, the party [seeking the\n\ndocuments] will be forced to appear at a proceeding during which the documents\n\nare produced.” Id. at 411. Additionally, enforcing the bar on pre-hearing\n\ndiscovery is beneficial because it will impose some inconvenience on the arbitrator\n\nthat will induce the arbitrator to weigh whether the production of the documents is\n\nnecessary. See id. at 414 (Chertoff, J., concurring).\n\n Accordingly, we interpret the plain meaning of Section 7 as (1) requiring\n\nsummonsed non-parties to appear in the physical presence of the arbitrator as\n\nopposed to a video conference or teleconference; and (2) prohibiting pre-hearing\n\ndiscovery. The district court abused its discretion in enforcing the arbitral\n\n\n 28\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 29 of 34\n\n\nsummonses because the court lacked power under Section 7 to order the witnesses\n\nto appear at the video conference and provide pre-hearing discovery.\n\n C. The Finality of the Order Denying Enforcement of the Settlement\n Agreement\n\n The district court’s order denying CIGNA’s motion to enforce the\n\nSettlement Agreement and compel an accounting constitutes a post-judgment order\n\nthat is final and appealable. An order is final when it disposes of all the issues\n\nraised in the motion that initiated the post-judgment proceedings. Mayer, 672 F.3d\n\nat 1224. While CIGNA’s motion to enforce the Settlement Agreement and compel\n\nan accounting was not the motion that triggered the post-judgment proceeding,\n\nCIGNA could have filed this motion to start a post-judgment proceeding even if\n\nMCAG had not already filed its petition to enforce the arbitral summonses.\n\nFurther, the order denying CIGNA’s motion disposed of the entire post-judgment\n\naction, leaving nothing more for the district court to do. Accordingly, it is properly\n\ncharacterized as a final and appealable order.\n\n D. The District Court’s Failure to Enforce the Settlement Agreement\n and Compel an Accounting\n\n The claims pending in the arbitration address Category Two claims that have\n\nnot yet been paid, whereas CIGNA’s motion seeks an accounting of what MCAG\n\nhas done with the proceeds of the claims that CIGNA has already paid. The\n\ndistrict court denied CIGNA’s motion to enforce the Settlement Agreement and\n 29\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 30 of 34\n\n\ncompel an accounting on the ground that “[t]he Arbitrator shall be allowed to\n\narbitrate the claims in the manner he sees fit.” However, the district court abused\n\nits discretion by allowing the arbitrator to review the claims that have already been\n\npaid, because the district court has a duty to class members to ensure that they\n\nreceive what they are entitled to under the Settlement Agreement and may not\n\ndefer to the arbitrator to compel an accounting of the claims that fall outside the\n\nambit of the arbitration agreement.\n\n The district court retained jurisdiction “as to all matters relating to [] the\n\ninterpretation, administration, and consummation of the [Settlement] Agreement.”\n\nBecause the district court retained jurisdiction over the administration of the\n\nSettlement Agreement, which set the terms for how CIGNA would compensate\n\nclass members, it has a responsibility to ensure the class members receive that to\n\nwhich they are entitled under the Settlement Agreement.\n\n The district court’s explicit retention of jurisdiction is consistent with\n its responsibility, pursuant to Fed. R. Civ. P. 23, to protect the interests\n of class members . . . . Retention of jurisdiction is enhanced when the\n court is attempting to protect members of a class action: In a class\n action, the district court has a duty to class members to see that any\n settlement it approves is completed, and not merely to approve a\n promise . . . to pay the relief to which it has decided class members are\n entitled.\n\nAlexander v. Chicago Park Dist., 927 F.2d 1014, 1023 (7th Cir. 1991) (citing In re\n\nCorrugated Container Antitrust Litig., 752 F.2d 137, 141 (5th Cir. 1985)) (internal\n\n 30\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 31 of 34\n\n\nblock quotation omitted); see also United States v. City. of Miami, 614 F.2d 1322,\n\n1331 (5th Cir. 1980) (explaining that courts, in their “role as a fiduciary” and\n\n“guardian for the unrepresented class members,” must apply “careful scrutiny . . .\n\nto guard against settlements that may benefit the class representatives or their\n\nattorneys at the expense of absent class members”).\n\n In the present case, the district court retained jurisdiction “as to all matters\n\nrelating to [] the interpretation, administration, and consummation of the\n\nAgreement.” The motion to enforce the Settlement Agreement and compel an\n\naccounting was initiated because CIGNA paid approximately $25 million to\n\nMCAG for class members’ claims submitted pursuant to the Settlement Agreement\n\nand, based on the record before the Court, it does not appear that class members\n\nreceived a significant portion of the funds to which they are entitled. CIGNA paid\n\nMCAG approximately $11 million prior to arbitration to distribute to class\n\nmembers for claims that were not the subject of the arbitration agreement and $14\n\nmillion during arbitration for Category Two claims.7 CIGNA paid these funds to\n\nMCAG solely for distribution to class members for their approved claims as\n\nrequired by the Settlement Agreement.\n\n\n 7\n MCAG and CIGNA agreed to arbitrate “final resolution of all issues relating to whether\nthe claims for Category Two Compensation under the Settlement Agreement . . . submitted by\nMCAG on behalf of Class Members are payable pursuant to that agreement . . . .” Because\nCIGNA already has paid $14 million in Category Two claims, these claims are no longer\n“payable,” and so they fall outside the ambit of the arbitration agreement.\n 31\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 32 of 34\n\n\n MCAG’s Chief Financial Officer, Douglas Perry, filed a sworn declaration\n\nstating that, “CIGNA paid approximately $11 million to MCAG prior to the\n\nArbitration in connection with other types of claims. Those moneys were\n\ndisbursed to class members.” However, MCAG subsequently admitted during oral\n\nargument that it distributed to class members only $7.5 million of the $11 million\n\nCIGNA paid for claims that were not the subject of arbitration. At a minimum,\n\nthis discrepancy indicates that class members have not received approximately\n\n$3.5 million of the funds to which they are entitled under the Settlement\n\nAgreement. Therefore, the district court should require an accounting regarding\n\nfunds CIGNA paid to MCAG for claims that were not the subject of the arbitration.\n\nAlexander, 927 F.2d at 1023.\n\n MCAG also admitted during oral argument that it has not distributed any of\n\nthe $14 million CIGNA paid to MCAG for Category Two claims since the\n\narbitration began. MCAG further admitted that only approximately $4.5 million\n\nremains of the $14 million CIGNA paid to MCAG for class members’ Category\n\nTwo claims. The physician agreements between MCAG and class members\n\nindicate that MCAG would retain at most 30 percent of the recovery amount.\n\nTherefore, even if MCAG distributes the remaining $4.5 million to claimants, a\n\ntotal of approximately $12 million would be distributed to class members and\n\n\n 32\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 33 of 34\n\n\nMCAG would retain over 50 percent of the total amount paid by CIGNA. This is\n\nsignificantly more than the 30 percent agreed to in the physician agreements.\n\n An accounting will provide information regarding how settlement proceeds\n\nhave been distributed because there is no formal record of what MCAG did with\n\napproximately $3.5 million in paid claims that were not the subject of the\n\narbitration and $9.5 million in paid Category Two claims that should have gone to\n\nclass members under the Settlement Agreement. See Alexander, 927 F.2d at 1023.\n\nAdditionally, MCAG is in possession of $4.5 million of the Category Two funds\n\nand has not indicated how those funds will be paid to the class members who are\n\nentitled to receive them.\n\n IV. CONCLUSION\n\n This litigation has been ongoing for almost twenty years, but it appears that\n\nmost of the money CIGNA paid to MCAG for the class members has not been\n\ndistributed. The district court should require an expeditious accounting of all funds\n\nCIGNA previously paid to MCAG for the benefit of the class members. The\n\naccounting should include any interest earned on the funds paid to MCAG. 8\n\n\n\n\n 8\n We deny as moot CIGNA’s first motion to supplement the record. On remand, CIGNA\nmay move the district court for permission to refile these documents on the district court’s\ndocket. We also deny as moot CIGNA’s motion for clarification regarding oral argument.\n 33\n\f Case: 17-13761 Date Filed: 09/18/2019 Page: 34 of 34\n\n\n The judgment of the district court is REVERSED, and this case is\n\nREMANDED for further proceedings consistent with this opinion.\n\n\n\n\n 34\n[END_CASE]","role":"user"}],"string":"[\n {\n \"content\": \"You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\\nin the codebook step by step and use the precise definitions of terms presented in the codebook below.\\n\\nYour task: Given metadata and text for a single federal appellate case, output a single JSON\\nobject that encodes the following variables:\\n\\n- Petitioner (name, description, and general category)\\n- Respondent (name, description, and general category)\\n- Disposition of Case\\n- Winning Party\\n- Issue Area\\n- Legal Provisions\\n- Decision Direction\\n- Lower Court Direction\\n- Declaration of Unconstitutionality\\n- Method (panel, en banc, or rehearing)\\n- Who Appealed (original plaintiff vs. defendant)\\n- Dissent Basis (procedural vs. merits — only if dissent exists)\\n- Concurrence Type (regular vs. special/result-only — only if concurrence exists)\\n- Concurrence Basis (procedural vs. merits — only if concurrence exists)\\n\\nYou are working with U.S. Courts of Appeals, not the Supreme Court. Apply the SCDB coding\\nrules as closely as possible, treating the **Court of Appeals as \\\"the Court\\\"** and assuming\\nthat the **lower court is, e.g., a federal district court** whose decision is being reviewed.\\n\\nTo encode these variables, start by determining the petitioner and respondent, following the\\ninstructions in Section 3.1. Then, find the disposition of the case and code it according\\nto Section 3.2. Knowing the disposition will guide your next step: determining if the petitioner\\nwas the winning party, following the directions in Section 3.3. Next, use the overall opinion content\\nto code the issue area as described in Section 3.4. This step will also inform the legal provisions\\ncoding as laid out in Section 3.5. With the winning party, disposition, and issue area fixed,\\ncarefully and precisely follow the directions in Section 3.6 to assign a decision direction for the opinion.\\nBased on that decision direction and the disposition, you can assign a lower court direction as well,\\nfollowing Section 3.7. Finally, justify your decisions in the manner described below.\\n\\n==================================================\\n1. INPUT FORMAT\\n==================================================\\n\\nYou will receive input in two sections:\\n\\n[CASE_METADATA]\\nCase name: <case name as in the caption>\\nCourt: <name of the Court of Appeals, e.g. \\\"United States Court of Appeals for the Ninth Circuit\\\">\\nDate decided: <YYYY-MM-DD or best approximation>\\nOpinion type: <e.g. \\\"majority\\\", \\\"per curiam\\\", \\\"on-the-merits\\\", \\\"rehearing\\\", \\\"en banc\\\", etc.>\\nHas dissenting opinion: <Yes or No, based on whether the input data contains a separate dissent>\\nHas concurring opinion: <Yes or No, based on whether the input data contains a separate concurrence>\\nAdditional notes: <any other metadata or summary, if provided>\\n\\n[CASE_TEXT]\\n<full or excerpted opinion text here>\\n[END_CASE]\\n\\nUse both metadata and text to code the variables. If metadata and text conflict, prefer the\\nsubstantive discussion in the opinion.\\n\\n==================================================\\n2. OUTPUT FORMAT\\n==================================================\\n\\nYou must output ONLY a single JSON object with exactly these keys:\\n\\n- \\\"petitioner\\\"\\n- \\\"respondent\\\"\\n- \\\"case_disposition\\\"\\n- \\\"winning_party\\\"\\n- \\\"issue_area\\\"\\n- \\\"legal_provisions\\\"\\n- \\\"decision_direction\\\"\\n- \\\"lower_court_direction\\\"\\n- \\\"declaration_of_unconstitutionality\\\"\\n- \\\"method\\\"\\n- \\\"who_appealed\\\"\\n- \\\"dissent_basis\\\" (only if the case has a dissenting opinion)\\n- \\\"concurrence_type\\\" (only if the case has a concurring opinion)\\n- \\\"concurrence_basis\\\" (only if the case has a concurring opinion)\\n- \\\"justification\\\"\\n\\nSchema:\\n\\n- \\\"petitioner\\\": {\\n \\\"name\\\": string, // short party name from caption; usually the appellant\\n \\\"description\\\": string, // role and identity, e.g. \\\"federal criminal defendant appealing conviction\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"respondent\\\": {\\n \\\"name\\\": string,\\n \\\"description\\\": string, // e.g. \\\"United States as appellee\\\", \\\"private employer\\\", \\\"federal agency\\\"\\n \\\"category\\\": integer, // 1–7 general litigant type (see Section 3.1)\\n \\\"category_label\\\": string // label for the category code\\n }\\n\\n- \\\"case_disposition\\\": {\\n \\\"code\\\": integer, // must be one of the codes below\\n \\\"label\\\": string\\n }\\n\\n- \\\"winning_party\\\": {\\n \\\"code\\\": integer, // 0, 1, or 2 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"issue_area\\\": {\\n \\\"code\\\": integer, // 1–14 from the list below\\n \\\"label\\\": string // short description of the main issue area\\n }\\n\\n- \\\"issue_area_alt\\\": {\\n \\\"code\\\": integer, // 1–14; your best non-Misc alternative if issue_area.code == 13, else same as issue_area.code\\n \\\"label\\\": string\\n }\\n\\n- \\\"legal_provisions\\\": [\\n {\\n \\\"area_code\\\": integer, // 1–9 (law area codes below)\\n \\\"area_label\\\": string,\\n \\\"provision_text\\\": string // e.g. \\\"Fourth Amendment, search and seizure\\\", \\\"18 U.S.C. § 924(c)\\\"\\n },\\n ...\\n ]\\n\\n- \\\"decision_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"lower_court_direction\\\": {\\n \\\"code\\\": integer, // 1, 2, or 3 as defined below\\n \\\"label\\\": string\\n }\\n\\n- \\\"declaration_of_unconstitutionality\\\": {\\n \\\"code\\\": integer, // 0 or 1 (see Section 3.8)\\n \\\"label\\\": string // \\\"no\\\" or \\\"yes\\\"\\n }\\n\\n- \\\"method\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.9)\\n \\\"label\\\": string\\n }\\n\\n- \\\"who_appealed\\\": {\\n \\\"code\\\": integer, // 1–4 (see Section 3.10)\\n \\\"label\\\": string\\n }\\n\\n- \\\"dissent_basis\\\": { // ONLY include if \\\"Has dissenting opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"concurrence_type\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"code\\\": integer, // 1–3 (see Section 3.12)\\n \\\"label\\\": string\\n }\\n\\n- \\\"concurrence_basis\\\": { // ONLY include if \\\"Has concurring opinion: Yes\\\" in metadata\\n \\\"procedural\\\": integer, // 0–3 (see Section 3.11)\\n \\\"merits\\\": integer // 0–3 (see Section 3.11)\\n }\\n\\n- \\\"justification\\\": string // 2–4 sentences summarizing why you chose these codes.\\n // You MUST explicitly say: (a) who won and why, (b) what issue_area.code is,\\n // (c) how that combination implied the decision_direction.code you chose, and\\n // (d) why the lower_court_direction is the same as or opposite to decision_direction.\\n\\nYour entire response must be exactly one JSON object in this schema and nothing else.\\n\\n==================================================\\n3. VARIABLE INTERPRETATION\\n==================================================\\n\\n3.1 Petitioner and Respondent\\n\\n- Use the case caption, opinion type, and text to determine who is appealing.\\n- Petitioner = the party seeking relief in the Court of Appeals (typically the appellant).\\n- Respondent = the party opposing the appeal (typically the appellee).\\n- The \\\"name\\\" should be a reasonably short label from the caption.\\n- The \\\"description\\\" should describe their role and identity (e.g., \\\"federal prisoner challenging sentence\\\",\\n \\\"state official in civil-rights suit\\\", \\\"private corporation defendant\\\", \\\"federal agency\\\").\\n\\nFor each party, also assign a \\\"category\\\" code using this 7-category typology:\\n\\n1 = private business or corporation (including partnerships, sole proprietorships)\\n2 = nonprofit organization, interest group, or union (as an institutional party)\\n3 = federal government (including U.S. as party, federal agencies like DOJ, IRS, EPA, SEC, NLRB, etc.)\\n4 = sub-state government (city, county, municipality, school district, local official)\\n5 = state government (state, governor, state agency, state official in official capacity)\\n6 = tribal government or Indian nation\\n7 = natural person (individual, including pro se litigants and individual officials sued personally)\\n\\nChoose the category based on who the party IS, not what kind of case it is. When a government\\nofficial is sued in their official capacity, code them as the relevant government level (3, 4, or 5).\\nWhen sued in their personal/individual capacity, code them as 7 (natural person).\\n\\n\\n3.2 Disposition of Case\\n\\nCodes (Songer-style numbering):\\n\\n1 = affirmed (includes modified and affirmed)\\n2 = reversed\\n3 = reversed and remanded\\n4 = vacated and remanded\\n5 = affirmed in part, reversed (or vacated) in part\\n6 = affirmed in part, reversed (or vacated) in part, and remanded\\n7 = vacated\\n8 = petition denied or appeal dismissed\\n9 = stay, petition, or motion granted\\n10 = certification to or from a lower court\\n11 = affirmed, vacated, and remanded (without reversal)\\n0 = no disposition\\n\\n- Use the text and opinion type (majority, rehearing, etc.) to identify what the Court of Appeals actually did.\\n- Only choose options 3, 4, or 6 if the opinion contains explicit instructions to remand the matter to the lower court\\n or original authority (the word \\\"remand\\\" must appear in the opinion text).\\n- For rehearing petitions, be explicit about whether the petition is granted (9), denied (8), or leads to modification\\n or vacatur (7) of the prior judgment.\\n- If the Court takes no substantive action on the merits (e.g., purely procedural opinion), use 0 (\\\"no disposition\\\").\\n\\n\\n3.3 Winning Party\\n\\nCodes:\\n\\n0 = no favorable disposition for petitioning party apparent\\n1 = petitioning party received a favorable disposition\\n2 = favorable disposition for petitioning party unclear\\n\\n- Treat the **petitioner** as the party seeking relief in the Court of Appeals.\\n- A \\\"favorable disposition\\\" is one that materially improves the petitioner's position relative to the lower court judgment\\n (e.g., reversal, vacatur, remand requiring relief, sentence reduction).\\n- For mixed outcomes (e.g., affirmed in part and reversed in part), assess whether, on balance, the petitioner is better off.\\n If clearly better off, use 1; if clearly not better off, use 0; if ambiguous, use 2.\\n- Note that an outcome favoring the petitioning party may be either an affirmation (if the lower court had ruled in favor of the petitioner)\\n OR a reversal (if the lower court had ruled against the petitioner). You should focus on whether the petitioner is better off,\\n regardless of the case disposition.\\n\\n\\n3.4 Issue Area\\n\\nChoose exactly one code and label from this list, based on the main legal/policy issue in the appeal:\\n\\n1 = Criminal Procedure\\n (e.g., search and seizure, arrest, interrogation, right to counsel, trial and sentencing rules, habeas)\\n\\n2 = Civil Rights\\n (e.g., equal protection, discrimination based on race or other protected traits, voting rights, school desegregation)\\n\\n3 = First Amendment\\n (e.g., freedom of speech, press, association, religion, and related expression claims)\\n\\n4 = Due Process\\n (e.g., non-criminal procedural fairness, property or liberty deprivations, economic regulation challenges framed as due process)\\n\\n5 = Privacy\\n (e.g., contraception, abortion, family relationships, intimate or sexual privacy, personal autonomy)\\n\\n6 = Attorneys\\n (e.g., attorney's fees, sanctions, bar admission and discipline, representation issues)\\n\\n7 = Unions\\n (e.g., labor relations, union membership and internal affairs, collective bargaining, union security)\\n\\n8 = Economic Activity\\n (e.g., antitrust, securities, regulation of business, commercial law, bankruptcy, financial regulation)\\n\\n9 = Judicial Power\\n (e.g., jurisdiction, standing, mootness, justiciability, sovereign immunity, standards of review, appellate procedure)\\n\\n10 = Federalism\\n (e.g., conflicts between federal and state authority, preemption, Tenth Amendment issues, state sovereign immunity vs federal power)\\n\\n11 = Interstate Relations\\n (e.g., disputes between states, boundary and water disputes, interstate compacts and obligations)\\n\\n12 = Federal Taxation\\n (e.g., federal income, corporate, estate, excise, and other federal tax issues)\\n\\n13 = Miscellaneous\\n (cases that genuinely do not fit any other issue area — see IMPORTANT note below)\\n\\n14 = Private Action\\n (e.g., private law disputes in property, contracts, torts, wills, estates, and similar matters)\\n\\nPick the **single best** issue area based on what the Court of Appeals treats as the central question.\\nIf multiple areas appear, choose the one most emphasized in the reasoning.\\n\\nIMPORTANT — AVOID MISCELLANEOUS (13):\\n\\nCode 13 should be used ONLY as a genuine last resort when NO other category applies even\\napproximately. Before choosing 13, reconsider the following common mappings:\\n\\n - Medical malpractice, products liability, personal injury, breach of contract,\\n admiralty, property disputes → 14 (Private Action)\\n - Workers' compensation (LHWCA, FELA, Longshore Act) → 7 (Unions) or 14 (Private Action)\\n - Bankruptcy, securities, antitrust, business regulation → 8 (Economic Activity)\\n - Social Security, disability, welfare benefits → 2 (Civil Rights)\\n - Attorneys' fees, bar discipline → 6 (Attorneys)\\n - Federal preemption of state law → 10 (Federalism)\\n - Procedural rehearing or jurisdictional questions → 9 (Judicial Power)\\n - Separation of powers, legislative veto → 13 (Miscellaneous) — this is a genuine use\\n\\nIf you DO choose issue_area.code = 13, you MUST also fill in \\\"issue_area_alt\\\" with your\\nbest-guess alternative code (the closest non-Misc category). If issue_area.code is not 13,\\nset \\\"issue_area_alt\\\" to the same code and label as \\\"issue_area\\\".\\n\\nISSUE AREA TIEBREAKING RULES:\\n\\nWhen a case implicates more than one issue area, apply these rules to select the primary one:\\n\\n- Criminal Procedure (1) vs. Civil Rights (2): If the court's holding concerns criminal\\n conviction, sentencing, or procedure itself (e.g., suppression of evidence, habeas review of\\n a conviction), use 1 even if discrimination or civil-rights statutes are mentioned. Use 2\\n only when the holding primarily addresses whether discriminatory treatment occurred or whether\\n a civil-rights statute was violated.\\n\\n- Criminal Procedure (1) vs. Due Process (4): If the party is a criminal defendant raising\\n due-process claims about trial procedure, sentencing, or conditions of confinement, use 1.\\n Use 4 only when the due-process claim arises in a non-criminal context (e.g., government\\n termination of benefits, property seizure in a civil case).\\n\\n- Judicial Power (9) vs. any other area: Many cases discuss jurisdiction, standing, or\\n justiciability before reaching the merits. Use 9 ONLY when the court's holding is\\n primarily about whether it has the power to hear the case — i.e., the court resolves a\\n jurisdictional or justiciability question and that resolution IS the outcome. If the court\\n establishes jurisdiction and then rules on the merits, use the substantive merits area instead.\\n\\n- Economic Activity (8) vs. Federalism (10): If the holding is about whether a federal\\n statute preempts state regulation, use 10. If the holding is about the substance of a\\n federal regulatory scheme (e.g., upholding or striking down an EPA rule on the merits),\\n use 8.\\n\\n- Civil Rights (2) vs. Due Process (4): If the claim involves alleged discrimination under\\n equal protection or a civil-rights statute, use 2. Use 4 only when the claim is about\\n procedural fairness or property/liberty deprivation without an underlying discrimination\\n allegation.\\n\\n\\n3.5 Legal Provisions\\n\\nFor each major legal provision the Court of Appeals applies or interprets, add an entry to \\\"legal_provisions\\\".\\n\\nLaw Area codes (SCDB varLawArea):\\n\\n1 = Constitution (original text)\\n An Article or Section of the original Constitution (not an Amendment).\\n Examples: Article I (congressional power), Article II (executive power),\\n Article III (judicial power), Supremacy Clause, Commerce Clause, Full Faith\\n and Credit Clause, Contracts Clause.\\n\\n2 = Constitutional Amendment\\n Any Amendment to the Constitution, including the Bill of Rights.\\n Examples: First Amendment (speech, religion), Fourth Amendment (search and\\n seizure), Fifth Amendment (due process, takings, self-incrimination), Sixth\\n Amendment (right to counsel, jury trial), Eighth Amendment (cruel and unusual\\n punishment), Fourteenth Amendment (equal protection, due process).\\n\\n3 = Federal Statute\\n A statute enacted by Congress, cited by title and section of the U.S. Code or\\n by its popular name. This is the most common category.\\n Examples: 42 U.S.C. § 1983 (civil rights), 28 U.S.C. § 1331 (federal question\\n jurisdiction), Title VII of the Civil Rights Act, Sherman Act § 1 (antitrust),\\n 18 U.S.C. § 924(c) (firearms), ERISA, CERCLA, ADA, FOIA, Sentencing Guidelines.\\n\\n4 = Court Rules\\n Federal Rules of Civil Procedure, Criminal Procedure, Evidence, or Appellate\\n Procedure, as well as local circuit rules.\\n Examples: Fed. R. Civ. P. 12(b)(6) (failure to state a claim), Fed. R. Civ. P.\\n 56 (summary judgment), Fed. R. Crim. P. 11 (plea agreements), Fed. R. Evid. 403\\n (prejudicial evidence).\\n\\n5 = Other\\n Common law doctrines, equitable principles, or other legal authorities not fitting\\n the categories above.\\n Examples: common law fraud, maritime law (general), equitable estoppel, doctrine\\n of laches, implied contracts.\\n\\n6 = Infrequently litigated statutes\\n Federal statutes that appear rarely in appellate litigation and are not well-known\\n by popular name. Use this when the statute is obscure or highly specialized.\\n Examples: Railway Labor Act, Packers and Stockyards Act, Suits in Admiralty Act,\\n obscure provisions of the Internal Revenue Code.\\n\\n8 = State or local law or regulation\\n A state statute, state constitutional provision, local ordinance, or state/local\\n regulation. Use this when the court applies or interprets state or local law rather\\n than federal law.\\n Examples: state tort law, state contract law, state criminal statute, local zoning\\n ordinance, state environmental regulation.\\n\\n9 = No Legal Provision\\n The opinion does not meaningfully rely on any identifiable legal provision. Very\\n rare — use only when the court's analysis is purely factual or procedural without\\n citing specific legal authority.\\n\\nFor each entry:\\n- `area_code`: choose the single best area for the provision.\\n- `area_label`: the corresponding label (e.g., \\\"Constitution\\\", \\\"Federal Statute\\\").\\n- `provision_text`: identify the specific provision (e.g., \\\"Fourth Amendment, search and seizure\\\",\\n \\\"42 U.S.C. § 1983\\\", \\\"Federal Rule of Civil Procedure 12(b)(6)\\\", \\\"state tort law\\\").\\n\\nInclude the one to three provisions central to the court's analysis. If the opinion does not meaningfully\\nrely on any legal provision (very rare), use a single entry with area_code 9 and a brief explanation.\\n\\nDistinguishing area codes:\\n- If the court interprets the CONSTITUTION ITSELF (e.g., Commerce Clause), use 1.\\n- If the court interprets a CONSTITUTIONAL AMENDMENT (e.g., Fourth Amendment), use 2.\\n- If the court interprets a FEDERAL STATUTE (the most common scenario), use 3.\\n- If the dispute is about a PROCEDURAL RULE (e.g., Rule 12(b)(6) motion), use 4.\\n- Use 8 for STATE LAW even if the case is in federal court on diversity jurisdiction.\\n- Use 5 for common law doctrines that are not codified in any statute or rule.\\n- Use 6 only for genuinely obscure federal statutes that would not be recognized by name.\\n\\n\\n3.6 Decision Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\n>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>\\nCRITICAL: The codes \\\"conservative\\\" and \\\"liberal\\\" are MECHANICAL LABELS defined by the SCDB\\ncodebook. They are NOT your own assessment of political ideology. You MUST apply them exactly\\nas the lookup table below specifies, even when the result seems counterintuitive. For example,\\na decision favoring a taxpayer over the IRS is ALWAYS coded conservative (1) in a Federal\\nTaxation case, regardless of the policy context. A decision upholding a government regulation\\nis ALWAYS coded liberal (2) in an Economic Activity case, even if the regulation benefits\\nbusiness. Do NOT let your general understanding of politics override these rules.\\n<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<<\\n\\nDIRECTION LOOKUP TABLE — apply mechanically based on issue_area.code and who benefits:\\n\\nissue_area.code | benefiting side | direction\\n----------------|------------------------------------------------------------|----------\\n1 (Crim. Pro.) | accused / convicted person / criminal defendant | 2 (liberal)\\n1 (Crim. Pro.) | prosecution / law enforcement / government | 1 (conservative)\\n2 (Civ. Rts.) | civil rights or civil liberties claimant | 2 (liberal)\\n2 (Civ. Rts.) | government defendant / party opposing civil rights claim | 1 (conservative)\\n3 (1st Amend.) | person asserting First Amendment protections | 2 (liberal)\\n3 (1st Amend.) | government restricting speech, press, religion, etc. | 1 (conservative)\\n4 (Due Proc.) | individual challenging deprivation of liberty or property | 2 (liberal)\\n4 (Due Proc.) | government upholding deprivation | 1 (conservative)\\n5 (Privacy) | person asserting privacy / autonomy / reproductive choice | 2 (liberal)\\n5 (Privacy) | government restricting privacy or autonomy | 1 (conservative)\\n7 (Unions) | union / workers / collective bargaining interests | 2 (liberal)\\n7 (Unions) | employer / management / anti-union interests | 1 (conservative)\\n8 (Econ. Act.) | workers, consumers, injured parties, environment, govt | 2 (liberal)\\n | regulation, or small entities against large business |\\n8 (Econ. Act.) | employers, large business, property owners, deregulation | 1 (conservative)\\n9 (Jud. Power) | broader court access / standing / review | 2 (liberal)\\n9 (Jud. Power) | narrower court access / standing / review | 1 (conservative)\\n10 (Federalism) | federal authority over state authority | 2 (liberal)\\n10 (Federalism) | state sovereignty over federal power | 1 (conservative)\\n12 (Fed. Tax.) | United States / IRS / federal taxing authority | 2 (liberal)\\n12 (Fed. Tax.) | taxpayer | 1 (conservative)\\n11,14 | use 3 (unspecifiable) unless decision clearly aligns | 3 (unspecifiable)\\n | with one of the patterns above |\\n\\nPROCEDURE: You MUST FIRST determine who won the case (winning_party), THEN identify the\\nissue_area, and LAST look up the decision_direction from the table above by matching the\\nissue_area.code with the side that benefited. Do NOT reason about direction from first\\nprinciples — use the table.\\n\\nIf, after applying the table, you cannot determine which side benefited, use 3 (unspecifiable).\\n\\n\\n3.6.1 Worked Examples\\n\\nThe following three examples demonstrate correct mechanical application of the direction\\nlookup table, including cases where the SCDB coding may seem counterintuitive:\\n\\nEXAMPLE A — Federal Taxation (issue_area.code = 12)\\n\\n Facts: A taxpayer appeals an IRS assessment to the Court of Appeals. The court reverses the\\n Tax Court, holding that the taxpayer's deductions were proper and the assessment was incorrect.\\n\\n Coding:\\n issue_area.code = 12 (Federal Taxation)\\n winning_party.code = 1 (petitioner/taxpayer received favorable disposition)\\n decision_direction = 1 (conservative) ← taxpayer won; lookup table row for code 12\\n says \\\"taxpayer → 1 (conservative)\\\"\\n\\n NOTE: Even though the taxpayer prevailed against the government, the SCDB mechanically\\n codes this as conservative (1) because the taxpayer benefited.\\n\\n\\nEXAMPLE B — Criminal Procedure (issue_area.code = 1)\\n\\n Facts: A criminal defendant appeals his conviction, arguing that evidence was obtained\\n through an unlawful search. The Court of Appeals affirms, holding the search was lawful.\\n\\n Coding:\\n issue_area.code = 1 (Criminal Procedure)\\n winning_party.code = 0 (no favorable disposition for petitioner)\\n decision_direction = 1 (conservative) ← prosecution/government benefited; lookup table\\n row for code 1 says \\\"prosecution → 1 (conservative)\\\"\\n\\n\\nEXAMPLE C — Economic Activity (issue_area.code = 8)\\n\\n Facts: A chemical company challenges an EPA water-quality regulation. The Court of Appeals\\n affirms, upholding the regulation as within the agency's statutory authority.\\n\\n Coding:\\n issue_area.code = 8 (Economic Activity)\\n winning_party.code = 0 (no favorable disposition for petitioner/company)\\n decision_direction = 2 (liberal) ← government regulation upheld against business;\\n lookup table row for code 8 says \\\"govt regulation → 2 (liberal)\\\"\\n\\n NOTE: Even if one might view upholding a regulation as a \\\"pro-business\\\" outcome (e.g., it\\n creates regulatory certainty), the SCDB mechanically codes government regulation prevailing\\n over a business challenge as liberal (2).\\n\\n\\n3.6.2 Internal Consistency Check\\n\\nBefore you output the JSON, you MUST run the following consistency check:\\n\\n1. Identify issue_area.code.\\n2. Identify which side won in the case (petitioner vs respondent) and what kind of party they are.\\n3. Look up the corresponding row in the DIRECTION LOOKUP TABLE above.\\n4. Verify that your decision_direction.code matches the table entry.\\n5. If it does not match, CORRECT decision_direction.code to match the table.\\n\\n\\n3.7 Lower Court Direction\\n\\nCodes:\\n\\n1 = conservative\\n2 = liberal\\n3 = unspecifiable\\n\\nUse the same DIRECTION LOOKUP TABLE as for Decision Direction (see Section 3.6), but applied to\\nthe **lower court's outcome**. You MUST determine the lower court's direction by comparing the lower\\ncourt's judgment and the appellate court's disposition.\\n\\nUse this rule of thumb:\\n\\n1. First, identify the appellate disposition (case_disposition.code).\\n2. Next, identify the decision_direction.code for the Court of Appeals.\\n3. Last, infer who benefited in the lower court and assign lower_court_direction as follows:\\n\\n- If the Court of Appeals clearly **leaves the lower court judgment in place** (e.g., case_disposition.code = 1 \\\"affirmed\\\"\\n or 8 \\\"petition denied or appeal dismissed\\\"), then the lower court's direction is the SAME as decision_direction.code.\\n\\n- If the Court of Appeals clearly **undoes the lower court judgment** (e.g., case_disposition.code = 2 \\\"reversed\\\",\\n 3 \\\"reversed and remanded\\\", 4 \\\"vacated and remanded\\\", or 7 \\\"vacated\\\"), then the lower court's direction is the\\n OPPOSITE of decision_direction.code.\\n\\n- For mixed outcomes (case_disposition.code = 5 or 6), compare who won more in the lower court vs on appeal:\\n * If, on balance, the petitioner is better off after the appeal than under the lower court judgment, then\\n the lower court's direction should usually be the OPPOSITE of decision_direction.code.\\n * If, on balance, the petitioner is worse off or no better off than under the lower court judgment, then\\n the lower court's direction should usually be the SAME as decision_direction.code.\\n * If you cannot determine who benefited more from the lower court judgment even approximately, use 3 (unspecifiable).\\n\\n- For stays, motions, certifications, or purely procedural dispositions (codes 9, 10, 0), infer who benefited in\\n the lower court if possible; if not, use 3 (unspecifiable).\\n\\nWhen you set lower_court_direction, remember:\\n- \\\"SAME\\\" means lower_court_direction.code = decision_direction.code.\\n- \\\"OPPOSITE\\\" means: if decision_direction.code = 1 (conservative), then lower_court_direction.code = 2 (liberal);\\n if decision_direction.code = 2 (liberal), then lower_court_direction.code = 1 (conservative).\\n\\n3.8 Declaration of Unconstitutionality\\n\\nCodes:\\n\\n0 = the court did NOT strike down any statute, regulation, or government action as unconstitutional\\n1 = the court DID declare a statute, regulation, or government action unconstitutional\\n\\nCode 1 if the court holds that a law, regulation, executive action, or government practice violates\\nthe Constitution (whether facial or as-applied). This includes striking down acts of Congress, federal\\nregulations, state statutes, state constitutional provisions, and local ordinances.\\n\\nDo NOT code 1 merely because the court discusses constitutional issues. The court must actually\\nhold that something is unconstitutional. If the court upholds the constitutionality of the\\nchallenged provision, code 0.\\n\\n\\n3.9 Method\\n\\nCodes:\\n\\n1 = standard panel decision (typically 3 judges, first hearing)\\n2 = panel rehearing (same panel reconsidering its prior decision)\\n3 = en banc (full court or en banc panel rehearing a case)\\n4 = per curiam (unsigned opinion — may overlap with codes 1 or 3)\\n\\nUse the opinion text, metadata, and case caption to determine the method. Look for explicit\\nstatements like \\\"before the court en banc,\\\" \\\"on rehearing,\\\" \\\"upon reconsideration,\\\" or\\n\\\"per curiam.\\\" If the metadata indicates more than 3 judges participated, this strongly\\nsuggests en banc (code 3). If none of these indicators are present, use 1 (standard panel).\\n\\n\\n3.10 Who Appealed\\n\\nCodes:\\n\\n1 = original plaintiff (or the equivalent, e.g. the Title VII complainant, habeas petitioner)\\n2 = original defendant (or the equivalent, e.g. the employer in a Title VII suit)\\n3 = federal government on behalf of the original plaintiff\\n4 = federal government on behalf of the original defendant\\n\\nDetermine who initiated the appeal by examining the case caption, opinion text, and procedural\\nhistory. The \\\"original plaintiff\\\" is the party who filed suit in the lower court; the \\\"original\\ndefendant\\\" is the party who was sued. In criminal cases, the original plaintiff is typically the\\ngovernment (prosecution) and the original defendant is the accused.\\n\\nIf the opinion describes a cross-appeal, code based on who filed the PRIMARY appeal (the one\\nthe court addresses as the main appeal). If you cannot determine who appealed, use 1 as default\\nfor criminal defendants (who are most commonly appellants) or your best judgment from the caption\\nordering (appellant is typically listed first).\\n\\n\\n3.11 Dissent/Concurrence Basis (Conditional)\\n\\nIf the case metadata states \\\"Has dissenting opinion: Yes\\\" or \\\"Has concurring opinion: Yes\\\",\\ncode whether that separate opinion addresses procedural issues, merits issues, or both.\\n\\nFor each dimension (procedural / merits), use one of these codes:\\n\\n0 = the dissent/concurrence exists but does NOT address this type of issue\\n1 = addresses the SAME issue as the majority and DISAGREES with the majority's resolution\\n2 = addresses the SAME issue as the majority and AGREES with the majority's resolution\\n3 = addresses an issue NOT discussed by the majority opinion\\n\\n\\\"dissent_basis\\\" (include ONLY if \\\"Has dissenting opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the dissent address procedural questions (jurisdiction, standing,\\n standard of review, procedural default, timeliness, etc.)?\\n - \\\"merits\\\": Does the dissent address the substantive legal merits (statutory interpretation,\\n constitutional analysis, factual sufficiency, etc.)?\\n\\n\\\"concurrence_basis\\\" (include ONLY if \\\"Has concurring opinion: Yes\\\"):\\n - \\\"procedural\\\": Does the concurrence address procedural questions?\\n - \\\"merits\\\": Does the concurrence address the substantive legal merits?\\n\\nIf multiple dissenting or concurring opinions exist, code based on the PRIMARY one\\n(the longest or most substantive).\\n\\nIf the metadata says \\\"Has dissenting opinion: No\\\", OMIT \\\"dissent_basis\\\" entirely from your output.\\nIf the metadata says \\\"Has concurring opinion: No\\\", OMIT \\\"concurrence_type\\\" and \\\"concurrence_basis\\\" entirely from your output.\\n\\n\\n3.12 Concurrence Type (Conditional)\\n\\nIf the case metadata states \\\"Has concurring opinion: Yes\\\", classify the concurrence as one of\\nthe following types:\\n\\nCodes:\\n\\n1 = regular concurrence — the concurring judge JOINED the majority opinion AND wrote or joined\\n a separate concurrence to add additional reasoning, emphasize a point, or note a limitation.\\n The key indicator: the judge agrees with BOTH the outcome AND the reasoning of the majority.\\n\\n2 = special concurrence / concurrence in result only — the concurring judge agrees with the\\n OUTCOME (disposition) but does NOT join the majority opinion's reasoning. Look for language\\n like \\\"concurring in the result,\\\" \\\"concurring in the judgment,\\\" \\\"concurring in the result\\n only,\\\" or \\\"I concur in the judgment but write separately because I disagree with the\\n majority's analysis.\\\" The key indicator: the judge explicitly declines to join the majority\\n opinion or distances themselves from the majority's reasoning.\\n\\n3 = cannot determine — the opinion text does not make clear whether the concurring judge joined\\n the majority opinion or only the result.\\n\\nThis distinction matters because special concurrences (code 2) signal reasoning disagreement\\nwithin a nominally unanimous disposition. A case where all judges agree on the outcome but one\\nwrites a special concurrence is qualitatively different from one where all judges agree on\\nboth outcome and reasoning.\\n\\nIf multiple concurring opinions exist, code based on the PRIMARY concurrence (the longest or\\nmost substantive). If one is a regular concurrence and another is a special concurrence,\\ncode based on the special concurrence (code 2), as it is more analytically informative.\\n\\n\\n==================================================\\n4. GENERAL RULES\\n==================================================\\n\\n- Use metadata (case name, court, date, opinion type) to:\\n - distinguish main merits opinions from rehearing or procedural opinions,\\n - interpret how the appellate disposition relates to the prior judgment,\\n - infer whether the case is criminal, civil rights, tax, etc.\\n- If some information is missing, use the appropriate \\\"unspecifiable\\\" or \\\"no disposition\\\" code\\n (e.g., 3 for direction, 11 for case_disposition); do not invent facts.\\n- Carefully follow the steps laid out in the introduction in order. In particular,\\n decide who won the case (winning_party). Then, decide what the issue_area is.\\n Only choose decision_direction once you have completed those steps, and follow the exact\\n directions in Section 3.6.\\n- In the justification, explicitly state who won, why (according to the disposition), and\\n how that winner and the issue_area code together implied the direction code you chose.\\n Reference the DIRECTION LOOKUP TABLE row you applied.\\n- ALWAYS choose exactly one code for each coded variable where required.\\n- NEVER output any keys other than the ones defined in the schema above.\\n- Include \\\"dissent_basis\\\", \\\"concurrence_type\\\", and \\\"concurrence_basis\\\" ONLY when the metadata\\n indicates the corresponding opinion type exists. Omit them entirely otherwise.\\n- NEVER output any numeric codes outside the permitted lists above.\\n\\n\\n==================================================\\n5. FINAL REQUIREMENT\\n==================================================\\n\\nAfter reading [CASE_METADATA] and [CASE_TEXT], respond ONLY with the JSON object in the schema\\nabove. Do not include any extra commentary, markdown, or explanation outside the JSON.\\n\",\n \"role\": \"system\"\n },\n {\n \"content\": \"[CASE_METADATA]\\nCase name: Managed Care Advisory Group, LLC v. Cigna Healthcare, Inc.\\nCourt: U.S. Court of Appeals for the Eleventh Circuit\\nDate decided: 2019-09-18\\nOpinion type: majority\\nHas dissenting opinion: No\\nHas concurring opinion: No\\nAdditional notes: \\n\\n[CASE_TEXT]\\nCase: 17-13761 Date Filed: 09/18/2019 Page: 1 of 34\\n\\n\\n [PUBLISH]\\n\\n\\n\\n IN THE UNITED STATES COURT OF APPEALS\\n\\n FOR THE ELEVENTH CIRCUIT\\n ________________________\\n\\n No. 17-13761\\n ________________________\\n\\n D.C. Docket No. 1:00-md-01334-FAM\\n\\n\\n\\nMANAGED CARE ADVISORY GROUP, LLC,\\n\\n Plaintiff - Appellee,\\n\\n\\n versus\\n\\n\\nCIGNA HEALTHCARE, INC.,\\n\\n Defendant - Appellant,\\n\\nEPIQ SYSTEMS, INC.,\\nDAVID GARCIA,\\nNEIL MANNING,\\nIMEDECS,\\nMILLENNIUM HEALTHCARE CONSULTING, INC.,\\nMARY FALBO,\\n\\n Interested Parties - Appellants.\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 2 of 34\\n\\n\\n ________________________\\n\\n Appeals from the United States District Court\\n for the Southern District of Florida\\n ________________________\\n\\n (September 18, 2019)\\n\\nBefore JILL PRYOR and BRANCH, Circuit Judges, and REEVES,* District\\nJudge.\\n\\nPER CURIAM:\\n\\n Medical providers filed several class action lawsuits against managed care\\n\\ninsurance companies, including CIGNA Healthcare, Inc. (“CIGNA”). These\\n\\nactions alleged that the insurers improperly processed and rejected certain\\n\\nphysicians’ claims for payment. The actions were consolidated into Multidistrict\\n\\nLitigation (“MDL”) before the United States District Court for the Southern\\n\\nDistrict of Florida. The class and CIGNA reached a settlement after extensive\\n\\nlitigation and the district court subsequently approved the parties’ Settlement\\n\\nAgreement.\\n\\n Following the settlement, Managed Care Advisory Group, LLC (“MCAG”),\\n\\nacting on behalf of class members, entered into an arbitration agreement with\\n\\nCIGNA in an attempt to resolve a dispute over a portion of the settlement funds.\\n\\n\\n\\n *\\n The Honorable Danny C. Reeves, United States Chief District Judge for the Eastern\\nDistrict of Kentucky, sitting by designation.\\n\\n 2\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 3 of 34\\n\\n\\nThe Settlement Agreement did not provide for arbitration and MCAG was not a\\n\\nparty to it. Instead, MCAG claimed to represent class members who were parties\\n\\nto the Settlement Agreement. The arbitrator summonsed the settlement claims\\n\\nadministrator and independent review entities (“IREs”) 1 to appear for a live\\n\\nhearing and video conference and to bring with them certain documents. MCAG\\n\\nfiled a motion to enforce the arbitral summonses in the district court approximately\\n\\nthree years after it had closed all proceedings involving the MDL. CIGNA\\n\\nresponded to MCAG’s motion to enforce the arbitral summonses with a motion to\\n\\nstrike the summonses. The district court referred the matter to a magistrate judge\\n\\nwho denied CIGNA’s motion and granted MCAG’s request to enforce the\\n\\nsummonses. CIGNA and the summonsed parties appealed the magistrate judge’s\\n\\ndecision to the district court and, at the district court’s suggestion, CIGNA filed a\\n\\nmotion to enforce the settlement and compel an accounting.\\n\\n The district court affirmed the magistrate judge’s decision, enforcing the\\n\\narbitral summonses, but denied CIGNA’s motion to enforce the Settlement\\n\\nAgreement and compel an accounting stating, “[t]he Arbitrator shall be allowed to\\n\\narbitrate the claims in the manner he sees fit.” After careful review of the record\\n\\n\\n\\n\\n 1\\n The IREs are organizations selected by mutual agreement of counsel for the parties to\\nthe Settlement Agreement. Their role is to review CIGNA’s disposition of insurance claims\\nsubmitted pursuant to the Settlement Agreement.\\n 3\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 4 of 34\\n\\n\\nand with the benefit of oral argument, we reverse enforcement of the arbitral\\n\\nsummonses. Additionally, we reverse and remand the denial of the motion to\\n\\nenforce the Settlement Agreement and compel an accounting to the extent that it\\n\\nrelates to a portion of settlement funds previously paid.\\n\\n I. BACKGROUND\\n\\n Medical providers filed several class actions against managed care insurance\\n\\ncompanies, including CIGNA, starting in 1999. The matters were consolidated\\n\\ninto an MDL proceeding in the United States District Court for the Southern\\n\\nDistrict of Florida in April 2000. MCAG was not a party, class member, or class\\n\\ncounsel in any of the lawsuits consolidated into the MDL, nor was it a party to the\\n\\nMDL itself. The parties later moved for preliminary approval of a settlement, and\\n\\nthe district court granted their request.\\n\\n The district court approved the settlement on January 30, 2004, following a\\n\\nclass action fairness hearing. The court noted, however, that it retained jurisdiction\\n\\nfor “all matters relating to [] the interpretation, administration, and consummation\\n\\nof the Agreement . . . .” The settlement included monetary relief to the class\\n\\nmembers as well as the ability to either (1) participate in a $30,000,000 fund that\\n\\nwould be distributed to class members or (2) seek recovery from an uncapped fund\\n\\nfor claims that were previously denied or reduced. As relevant to this appeal,\\n\\n“Category Two” claims sought recovery from the uncapped fund. To seek\\n 4\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 5 of 34\\n\\n\\ncompensation for Category Two claims, the class members would submit their\\n\\nclaims to the settlement administrator, who would forward them to CIGNA upon\\n\\nverification that the claim was accompanied by sufficient supporting documents.\\n\\nIf CIGNA determined that a claim was not payable, it would be reviewed by the\\n\\nindependent settlement administrator or the IRE (collectively, “the Reviewers”),\\n\\ndepending on the reason for the denial. After evaluating these claims, the\\n\\nReviewers would make a final, independent decision regarding whether the claims\\n\\nshould be paid.\\n\\n Class member Texas Children’s Pediatric Associates (“TCPA”) moved for\\n\\nenforcement of the settlement on July 14, 2005, asserting that CIGNA obstructed\\n\\nthe process for Category Two claims, causing the Reviewers to improperly process\\n\\nclaims. TCPA requested in the motion for enforcement of the settlement that the\\n\\ndistrict court direct CIGNA to pay its claims. However, TCPA subsequently\\n\\nwithdrew its motion on November 16, 2005, noting that MCAG and CIGNA\\n\\nagreed to binding arbitration of the matter.\\n\\n The notice of withdrawal indicated that the parties agreed that the district\\n\\ncourt “should, consistent with the Settlement Agreement, Final Judgment and the\\n\\nArbitration Agreement, retain jurisdiction over the parties and this matter for\\n\\npurposes of confirming, modifying and/or vacating that Arbitration Award (as well\\n\\nas any pre-Award decisions) in accordance with the FAA [Federal Arbitration\\n 5\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 6 of 34\\n\\n\\nAct].” However, the Settlement Agreement did not require arbitration and did not\\n\\nhave an arbitration provision. Instead, the arbitration agreement between CIGNA\\n\\nand MCAG was separate and apart from the Settlement Agreement, to which\\n\\nMCAG was not a party. The Reviewers were not parties to the binding arbitration\\n\\nand the arbitration agreement was solely between MCAG and CIGNA.2\\n\\n During the arbitration, the arbitrator required CIGNA to allow reprocessing\\n\\nof certain claims; however, problems supposedly arose. The arbitrator issued non-\\n\\nparty summonses to the following third parties requiring them to participate in the\\n\\narbitration hearing: (1) Epiq, the settlement administrator; (2) David Garcia, a\\n\\nproject director at Epiq; (3) Neil Manning, an ex-employee of Epiq; (4)\\n\\nIMEDECS/Millennium Healthcare Consulting, Inc., the IRE; and (5) Mary Falbo,\\n\\nthe IRE’s founder and CEO (collectively, “the summonsed parties”).\\n\\n The summonses directed the summonsed parties to appear by video. Some\\n\\nalso required the summonsed parties to produce documents. Federal district courts\\n\\nwhere the summonsed parties were located issued corresponding subpoenas. Upon\\n\\nreceipt, however, the summonsed parties objected to the summonses and indicated\\n\\nthey would not comply without an order compelling them to do so. On September\\n\\n2, 2016, MCAG moved the district court to enforce the arbitration summonses\\n\\n\\n 2\\n The district court, sua sponte, closed the MDL on September 9, 2013, because it\\nconcluded all the associated cases had been closed.\\n 6\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 7 of 34\\n\\n\\npursuant to 9 U.S.C § 7. CIGNA then moved to strike MCAG’s motion to enforce\\n\\nthe summonses. IMEDECS, Millennium Healthcare Consulting, Inc., and Falbo\\n\\n(collectively, “IMEDECS”) filed a response in opposition to the motion to enforce.\\n\\nEpiq, Garcia, and Manning (collectively, “Epiq”) also filed a separate response in\\n\\nopposition.\\n\\n A magistrate judge held a hearing and concluded the court had jurisdiction\\n\\nto enforce the arbitration summonses because the district court judge “appointed\\n\\nthe arbitrator and he reserved jurisdiction to enforce the settlement agreement and\\n\\nthe parties agreed, in the arbitration agreement, . . . to the jurisdiction of the\\n\\nCourt.” The magistrate judge ruled directly on the pending motions by granting\\n\\nMCAG’s motion to enforce, while denying CIGNA’s motion to strike. CIGNA,\\n\\nEpiq, and IMEDECS challenged the magistrate judge’s rulings.\\n\\n The district court held a status conference, and CIGNA subsequently moved\\n\\nto enforce the Settlement Agreement and compel an accounting as suggested by\\n\\nthe district court. CIGNA alleged MCAG mismanaged settlement funds totaling\\n\\nover $25 million, which CIGNA had paid to MCAG for the benefit of the class\\n\\nmembers. CIGNA made two types of payments to MCAG. First, prior to\\n\\narbitration, CIGNA paid a total of approximately $11 million to MCAG for class\\n\\nmembers’ claims that were not the subject of arbitration. Second, during\\n\\narbitration, CIGNA paid an additional $14 million for class members’ Category\\n 7\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 8 of 34\\n\\n\\nTwo claims. CIGNA paid these funds to MCAG solely for distribution to class\\n\\nmembers as required by the Settlement Agreement.\\n\\n The district court affirmed the magistrate judge’s order granting MCAG’s\\n\\nmotion to enforce the arbitral summonses and denied CIGNA’s motion to enforce\\n\\nthe Settlement Agreement and compel an accounting. It noted that “[t]he\\n\\nArbitrator shall be allowed to arbitrate the claims in the manner he sees fit.”\\n\\n CIGNA, Epiq, and IMEDECS appeal the district court order. Epiq and\\n\\nIMEDECS challenge the district court’s order enforcing the arbitral summonses.\\n\\nCIGNA appeals the district court’s denial of its motion to enforce the Settlement\\n\\nAgreement and compel an accounting.\\n\\n MCAG conceded during oral argument that: (1) it had not distributed all of\\n\\nthe funds CIGNA paid before the arbitration for claims that were not the subject of\\n\\nthe arbitration (despite MCAG’s previous assertion that it had distributed all of\\n\\nthese funds); (2) it had not distributed any of the settlement money paid by CIGNA\\n\\nfor Category Two claims since the arbitration commenced; and (3) only\\n\\napproximately $4.5 million remains of the settlement proceeds CIGNA paid to\\n\\nMCAG for class members’ Category Two claims. Additionally, MCAG conceded\\n\\nthat it was obligated to pay the class members shortly after receiving payment from\\n\\nCIGNA.\\n\\n\\n 8\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 9 of 34\\n\\n\\n Before oral arguments, this Court issued a jurisdictional question asking the\\n\\nparties to respond to two inquiries: (1) whether the district court order enforcing\\n\\nthe arbitration summonses was a final order, particularly in light of the fact that the\\n\\norder enforced summonses against third parties and is apparently a post-judgment\\n\\norder; and (2) whether the district court’s order denying CIGNA’s motion to\\n\\nenforce the Settlement Agreement and to compel an accounting was final in light\\n\\nof the district court’s reasoning that CIGNA’s claims would instead be handled by\\n\\nthe arbitrator. CIGNA, Epiq, and IMEDECS responded that the orders were final\\n\\nand appealable, while MCAG contended the orders were not final and appealable.\\n\\n II. STANDARDS OF REVIEW\\n\\n A district court’s decision regarding personal jurisdiction is reviewed de\\n\\nnovo. Louis Vuitton Malletier, S.A. v. Mosseri, 736 F.3d 1339, 1350 (11th Cir.\\n\\n2013). Additionally, a district court’s decision that it has subject matter\\n\\njurisdiction to hear a motion to enforce arbitral summonses is also reviewed de\\n\\nnovo. Doe v. Fed. Aviation Admin., 432 F.3d 1259, 1261 (11th Cir. 2005). This\\n\\nCourt has not explicitly established a standard of review for a district court’s\\n\\nenforcement of arbitral summonses. However, whether an agency had authority to\\n\\nissue an administrative subpoena and a district court’s interpretation and\\n\\napplication of a statute are reviewed de novo. United States v. Fla. Azalea\\n\\nSpecialists, 19 F.3d 620, 622 (11th Cir. 1994); Alexander v. Hawk, 159 F.3d 1321,\\n 9\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 10 of 34\\n\\n\\n1323 (11th Cir. 1998). Further, a district court’s decision to enforce or quash a\\n\\nsubpoena is reviewed for abuse of discretion. In re Hubbard, 803 F.3d 1298, 1307\\n\\n(11th Cir. 2015). A district court’s decision to deny the equitable remedy of\\n\\naccounting is also reviewed for abuse of discretion. Zaki Kulaibee Establishment\\n\\nv. McFliker, 771 F.3d 1301, 1310 (11th Cir. 2014).\\n\\n Finally, this Court reviews a district court’s interpretation of a settlement\\n\\nagreement de novo, and decisions regarding motions to enforce settlements for\\n\\nabuse of discretion. In re Managed Care, 756 F.3d 1222, 1232 (11th Cir. 2014);\\n\\nResnick v. Uccello Immobilien GMBH, Inc., 227 F.3d 1347, 1350 (11th Cir. 2000).\\n\\n“An error of law is an abuse of discretion per se.” Resnick, 227 F.3d at 1350\\n\\n(citing Alikhani v. United States, 200 F.3d 732, 734 (11th Cir. 2000)).\\n\\n III. ANALYSIS\\n\\n A. Finality of the Order Enforcing Arbitral Summonses\\n\\n The district court’s order enforcing the arbitral summonses is a final and\\n\\nappealable order. The FAA allows an appeal from “a final decision with respect to\\n\\nan arbitration that is subject to this title.” 9 U.S.C. § 16(a)(3). The Supreme Court\\n\\nhas interpreted this section according to the “well-developed and longstanding\\n\\nmeaning” of a “final decision.” Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S.\\n\\n79, 86, 121 S. Ct. 513, 519, 148 L. Ed. 2d 373 (2000). A final decision “ends the\\n\\n\\n 10\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 11 of 34\\n\\n\\nlitigation on the merits and leaves nothing more for the court to do but execute the\\n\\njudgment.” Id. (internal quotation marks omitted).\\n\\n An arbitrator may summons an individual to attend the arbitration as a\\n\\nwitness. 9 U.S.C. § 7. But if the individual who was summonsed to testify refuses\\n\\nto attend, the aggrieved party may petition the United States district court to\\n\\ncompel the attendance of the individual refusing to attend. Id. The district court\\n\\nmust be in the district where the arbitrator sits and may compel attendance “in the\\n\\nsame manner provided by law for securing the attendance of witnesses . . . in the\\n\\ncourts of the United States.” Id. Rule 45(b) of the Federal Rules of Civil\\n\\nProcedure provides the manner of serving subpoenas before the court and states\\n\\nthat “[a] subpoena may be served at any place within the United States.” Fed. R.\\n\\nCiv. P. 45(b)(2).\\n\\n The district court’s order enforcing the arbitration summonses is a post-\\n\\njudgment order. Generally, a post-judgment order is final if it disposes of all the\\n\\nissues raised in the motion that initiated the post-judgment proceedings. Mayer v.\\n\\nWall St. Equity Grp., Inc., 672 F.3d 1222, 1224 (11th Cir. 2012). However, there\\n\\nis authority holding that interlocutory orders denying motions to quash third-party\\n\\nsubpoenas and post-judgment orders compelling discovery are not appealable.\\n\\nDrummond Co. v. Terrance P. Collingsworth, Conrad & Scherer, LLP, 816 F.3d\\n\\n1319, 1322, 1325-27 (11th Cir. 2016); Rouse Constr. Int’l. Inc. v. Rouse Constr.\\n 11\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 12 of 34\\n\\n\\nCorp., 680 F.2d 743, 745-46 (11th Cir. 1982). This case is distinguishable,\\n\\nhowever.\\n\\n Drummond and Rouse did not consider orders under § 7.3 Instead,\\n\\nDrummond states the general rule that a final order “is one by which a district court\\n\\ndisassociates itself from the case.” 816 F.3d at 1322. In other words, “[i]t ends the\\n\\nlitigation on the merits and leaves nothing more for the court to do but execute the\\n\\njudgment.” Id. (internal quotation marks omitted). The Court noted, in the context\\n\\nof a civil litigation subpoena, “[d]iscovery orders are ordinarily not final orders\\n\\nthat are immediately appealable.” Id. (internal quotation marks omitted). Rouse\\n\\nstates, “As a general proposition most orders granting or denying discovery are not\\n\\nfinal orders . . . and therefore are not immediately appealable.” 680 F.2d at 745.\\n\\n Also, in Drummond and Rouse, the district courts were overseeing\\n\\ndiscovery. After discovery concluded, the cases were almost certainly going to\\n\\nreturn to the district court for litigation on the merits (Drummond) or for\\n\\nverification that Rouse Construction Corp. was complying with the arbitration\\n\\naward (Rouse). In contrast, the district court’s order in the present case enforcing\\n\\nthe arbitral summonses sends the litigants back to the standalone arbitration\\n\\n\\n\\n 3\\n Drummond concerned an order denying a motion to quash a subpoena pursuant to Rule\\n45(d)(3)(A) of the Federal Rules of Civil Procedure. 816 F.3d at 1322. Rouse addressed a\\ndistrict court order granting a post-judgment motion to compel discovery pursuant to Rules 37(a)\\nand 69(a) of the Federal Rules of Civil Procedure. 680 F.2d at 744 & n.2, 745 & n.4.\\n 12\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 13 of 34\\n\\n\\nproceeding, and the district court has disposed of everything pending before it. If\\n\\nMCAG or CIGNA wants the district court to review the arbitration award later on,\\n\\nthey will have to submit a separate application to the district court. 9 U.S.C. §§ 9-\\n\\n11.\\n\\n The Second and Seventh Circuits have determined that they possess\\n\\njurisdiction under 9 U.S.C. § 16(a)(3) regarding orders compelling compliance\\n\\nunder 9 U.S.C. § 7. See Dynegy Midstream Servs. v. Trammochem, 451 F.3d 89,\\n\\n92-94 (2d Cir. 2006); Amgen, Inc. v. Kidney Ctr. of Del. Cty., Ltd., 95 F.3d 562,\\n\\n565-67 (7th Cir. 1996). The Second Circuit concluded it had jurisdiction in\\n\\nDynegy because the “litigation to enforce the subpoena [was] an entirely self-\\n\\ncontained court proceeding, and the court’s order compelling compliance\\n\\ncompletely disposed of the case, leaving nothing more for the court to do but\\n\\nenforce the judgment.” 451 F.3d at 93. And in Amgen, the Seventh Circuit noted\\n\\nthat, “[w]hen the district court confirmed the arbitrator’s authority to issue the\\n\\nsummons and when it identified a mechanism to compel compliance with that\\n\\nsummons, it disposed of all the issues before it.” 95 F.3d at 567.\\n\\n Here, the district court confirmed the arbitrator’s authority to issue the\\n\\nsummonses and identified a way to compel compliance with them. Accordingly,\\n\\nthis Court has jurisdiction because the district court order enforcing the summonses\\n\\ndisposed of all the issues before it. See Mayer, 672 F.3d at 1224.\\n 13\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 14 of 34\\n\\n\\n Notwithstanding the district court’s disposition of the motion, it retained\\n\\njurisdiction to review the arbitrator’s decision. The FAA permits “parties to\\n\\narbitration agreements to bring a separate proceeding in a district court to enter\\n\\njudgment on an arbitration award once it is made (or to vacate or modify it), but\\n\\nthe existence of that remedy does not vitiate the finality of the [d]istrict [c]ourt’s\\n\\nresolution of the claims in the instant proceeding.” Green Tree, 531 U.S. at 86,\\n\\n121 S. Ct. at 520 (citing 9 U.S.C. §§ 9, 10, 11). Thus, the district court order was\\n\\nfinal and its retention of jurisdiction to review the arbitrator’s decision does not\\n\\ndestroy the finality of the district court’s ruling pertaining to the enforcement of the\\n\\narbitral summonses. See id.\\n\\n B. Order Allowing Nationwide Arbitral Summons\\n\\n i. Subject Matter Jurisdiction\\n\\n “[T]his court has the obligation to inquire into subject matter jurisdiction\\n\\nwhenever it may be lacking.” Baltin v. Alaron Trading Corp., 128 F.3d 1466,\\n\\n1468 (11th Cir. 1997). When a federal court otherwise lacks jurisdiction, it may\\n\\npossess ancillary jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am.,\\n\\n511 U.S. 375, 379, 114 S. Ct. 1673, 1676, 128 L. Ed. 2d 391 (1994).\\n\\n The district court properly determined that it had ancillary jurisdiction over\\n\\nthe motion to enforce the summonses. However, the magistrate judge improperly\\n\\nfound jurisdiction on two additional grounds: (1) the district court appointed the\\n 14\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 15 of 34\\n\\n\\narbitrator; and (2) the parties agreed to jurisdiction of the district court in their\\n\\narbitration agreement. The first additional ground is an error of law because\\n\\nappointing an arbitrator pursuant to the FAA does not provide jurisdiction. Cf.\\n\\nHall St. Assoc., L.L.C. v. Mattel, Inc., 552 U.S. 578, 581-82, 128 S. Ct. 1396, 1400,\\n\\n1402, 170 L. Ed. 2d 254 (2008). The second additional ground also constitutes an\\n\\nerror of law because jurisdiction cannot be created by an agreement between\\n\\nparties. Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1261 (11th Cir. 2000).\\n\\n While the FAA “creates a body of federal substantive law establishing and\\n\\nregulating the duty to honor an agreement to arbitration, [] it does not create any\\n\\nindependent federal-question jurisdiction under 28 U.S.C. § 1331 [] or otherwise.”\\n\\nMoses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 n.32, 103 S.\\n\\nCt. 927, 942 n.32, 74 L. Ed. 2d 765 (1983); see also Hall, 552 U.S. at 581-82, 128\\n\\nS. Ct. at 1402. However, the magistrate judge did not hold that the district court\\n\\nhad federal question jurisdiction. He instead held that the district court had\\n\\nancillary jurisdiction because it retained jurisdiction over the settlement agreement.\\n\\n Ancillary jurisdiction applies when necessary “to enable a court to function\\n\\nsuccessfully, that is, to manage its proceedings, vindicate its authority, and\\n\\neffectuate its decrees.” Kokkonen, 511 U.S. at 380, 114 S. Ct. at 1676. If a court\\n\\nretains jurisdiction over a settlement agreement, it retains ancillary jurisdiction to\\n\\nenforce the agreement. Id. at 381.\\n 15\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 16 of 34\\n\\n\\n The district court retained jurisdiction “as to all matters relating to [] the\\n\\ninterpretation, administration, and consummation of the Agreement.” Because the\\n\\ndistrict court retained jurisdiction concerning matters related to the administration\\n\\nof the Settlement Agreement, it retained jurisdiction over the distribution of\\n\\nCategory Two claims. The arbitration involves disputes regarding distribution of\\n\\nCategory Two claims, so the district court has ancillary jurisdiction over the\\n\\narbitration.\\n\\n While MCAG was not a party to the Settlement Agreement, the Settlement\\n\\nAgreement contained no provision for arbitration, and the summonsed parties were\\n\\nnot parties to the arbitration agreement, the purpose of the arbitration was to\\n\\nresolve disputes involving Category Two claims that arose out of the Settlement\\n\\nAgreement, and the subpoenas issued to the summonsed parties were for the\\n\\npurpose of determining whether Category Two claims as provided in the\\n\\nSettlement Agreement were payable.\\n\\n Accordingly, the district court’s determination that it had ancillary\\n\\njurisdiction is appropriate because the arbitration and arbitral summonses “relat[ed]\\n\\nto” the Settlement Agreement in which the district court retained jurisdiction.4\\n\\n\\n 4\\n CIGNA protests that MCAG lacks standing because it has breached its fiduciary duties\\nto class members it purports to represent. Though CIGNA invokes the language of standing, its\\nstanding argument is a recharacterization of its arguments for why the district court should have\\ngranted its motion to enforce the Settlement Agreement and compel an accounting. We address\\nthat motion below in Part III.D.\\n 16\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 17 of 34\\n\\n\\n ii. Personal Jurisdiction\\n\\n “Before a federal court may exercise personal jurisdiction over a defendant,\\n\\nthe procedural requirement of service of summons must be satisfied.” Omni\\n\\nCapital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104, 108 S. Ct. 404, 409,\\n\\n98 L. Ed. 2d 415 (1987). Section 7 of the FAA allows nationwide service of\\n\\narbitral summonses. In the present case, the magistrate judge stated, “I find that as\\n\\nfar as personal jurisdiction because it [referring to the service of arbitral\\n\\nsummonses] is allowed throughout the United States that that meets the personal\\n\\njurisdiction needs.”\\n\\n “[I]n interpreting a statute a court should always turn first to one, cardinal\\n\\ncanon before all others . . . . [C]ourts must presume that a legislature says in a\\n\\nstatute what it means and means in a statute what it says there.” Conn. Nat’l Bank\\n\\nv. Germain, 503 U.S. 249, 253-54, 112 S. Ct. 1146, 1149, 117 L. Ed. 2d 391\\n\\n(1992). “When the words of a statute are unambiguous, then, this first canon is\\n\\nalso the last: judicial inquiry is complete.” Id. (internal quotation marks omitted).\\n\\n The words of 9 U.S.C. § 7 are unambiguous, so the plain meaning must be\\n\\nused. Two concepts are addressed in 9 U.S.C. § 7. First, it addresses service of\\n\\narbitral summonses. Next, it addresses compelling enforcement of arbitral\\n\\nsummonses. These concepts are addressed in turn.\\n\\n a. Service of Arbitral Summonses\\n 17\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 18 of 34\\n\\n\\n Title 9 of the United States Code, Section 7, states that arbitral summonses\\n\\n“shall be served in the same manner as subpoenas to appear and testify before the\\n\\ncourt . . . .” Without specifically citing the rule by name, this provision references\\n\\nRule 45 of the Federal Rules of Civil Procedure. Rule 45 governs the service of\\n\\nsubpoenas and states that “[a] subpoena may be served at any place within the\\n\\nUnited States.” Fed. R. Civ. P. 45(b)(2). Thus, under 9 U.S.C. § 7, the FAA\\n\\npermits nationwide service of arbitral summonses.\\n\\n The appellants contend that the Second Circuit has held that Section 7 of the\\n\\nFAA does not authorize nationwide service of process. Dynegy, 451 F.3d at 94-96.\\n\\nHowever, the Second Circuit issued its opinion in Dynegy in 2006, well before\\n\\nRule 45 was amended in 2013 to provide for nationwide service of subpoenas.\\n\\nFed. R. Civ. P. 45 advisory committee’s note to 2013 amendment. “When a statute\\n\\nadopts the general law on a given subject, the reference is construed to mean that\\n\\nthe law is as it reads thereafter at any given time including amendments subsequent\\n\\nto the time of adoption.” Longmire v. Sea Drilling Corp., 610 F.2d 1342, 1352\\n\\n(5th Cir. 1980) (quoting Dir., Office of Workers’ Comp. Programs v. Peabody\\n\\nCoal Co., 554 F.2d 310, 322 (7th Cir. 1977)); see also Jam v. Int’l Fin. Corp.,\\n\\n__ U.S. __, 139 S. Ct. 759, 769, 203 L. Ed. 2d 53 (2019) (“[W]hen a statute refers\\n\\nto a general subject, the statute adopts the law on that subject as it exists whenever\\n\\na question under the statute arises.”). Conversely, when a statute references\\n 18\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 19 of 34\\n\\n\\n“limited and particular provisions of another statute,” it does not include\\n\\nsubsequent amendments. Longmire, 610 F.2d at 1352; see also Jam, __ U.S. __,\\n\\n139 S. Ct. at 769 (“[A] statute that refers to another statute by specific title or\\n\\nsection number in effect cuts and pastes the referenced statute as it existed when\\n\\nthe referring statute was enacted, without any subsequent amendments.”).\\n\\n Further, Jam states that “a general reference to federal discovery rules\\n\\nincorporates those rules ‘as they are found on any given day, today included.’” Id.\\n\\n(quoting El Encanto, Inc. v. Hatch Chile Co., 825 F.3d 1161, 1164 (10th Cir. 2016)\\n\\n(specifying that the reference to Rule 45 in 35 U.S.C. § 24 is a general reference\\n\\nand refers to Rule 45 as it is today)). Because Section 7 of the FAA contains a\\n\\ngeneral reference to Rule 45 by requiring subpoenas to be “served in the same\\n\\nmanner as subpoenas to appear and testify before the court,” it incorporates\\n\\nsubsequent changes to Rule 45, including the 2013 amendment permitting\\n\\nnationwide service. The incorporation of the 2013 amendment to Rule 45\\n\\npermitting nationwide service therefore distinguishes the present case from the\\n\\nSecond Circuit’s holding in Dynegy. Accordingly, we conclude that nationwide\\n\\nservice of arbitral summonses is appropriate.\\n\\n b. Compelling Enforcement of Arbitral Summonses\\n\\n Section 7 of the FAA also addresses compelling the enforcement of arbitral\\n\\nsummonses when a summonsed party fails to comply. The section states that if a\\n 19\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 20 of 34\\n\\n\\nperson refuses to comply with an arbitral summons, a court “may compel the\\n\\nattendance of such person . . . in the same manner provided by law for securing the\\n\\nattendance of witnesses . . . in the courts of the United States.” 9 U.S.C. § 7.\\n\\nAgain, without specifically citing the rule by name, this provision references Rule\\n\\n45 of the Federal Rules of Civil Procedure. Rule 45 governs securing the\\n\\nattendance of witnesses and states that “the serving party may move the court for\\n\\nthe district where compliance is required for an order compelling production or\\n\\ninspection.” Fed. R. Civ. P. 45(d)(2)(B)(i). However, 9 U.S.C. § 7 provides that\\n\\nthe district court for the district in which the arbitrators are sitting may compel the\\n\\nattendance of a person refusing to obey an arbitral summons.\\n\\n Initially, it appears that 9 U.S.C. § 7 and Rule 45 are inconsistent because\\n\\nRule 45 requires the motion to be filed in the district where compliance is required,\\n\\nwhile 9 U.S.C. § 7 requires the motion to be filed in the district where the\\n\\narbitrators sit. Ultimately however, this inconsistency is avoided because 9 U.S.C.\\n\\n§ 7 simply states that compelling attendance must be done in the same manner\\n\\nprovided by law (i.e., filing a motion) and does not incorporate Rule 45 regarding\\n\\nwhere motions to compel must be filed. As a result, we conclude that the plain\\n\\nmeaning of 9 U.S.C. § 7 requires that a motion to compel must be filed in the\\n\\ndistrict in which the arbitrators are sitting.\\n\\n iii. Fifth Amendment\\n 20\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 21 of 34\\n\\n\\n Even if a statute authorizes nationwide service of process, due process\\n\\nrequires that the district court evaluate traditional notions of fairness and\\n\\nreasonableness, by weighing the burdens imposed on the summonsed parties\\n\\nagainst the federal interest, before exercising personal jurisdiction. Republic of\\n\\nPanama v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 946, 948 (11th Cir.\\n\\n1997). However, when nationwide service is involved, “it is only in highly\\n\\nunusual cases that inconvenience will rise to a level of constitutional concern.” Id.\\n\\nat 938-39, 947. Further, we need to balance the federal interest against the burdens\\n\\nimposed on the summonsed parties only if they have “established that [their]\\n\\nliberty interests actually have been infringed” and that “jurisdiction in the forum\\n\\nwill make litigation so gravely difficult and inconvenient that [they] unfairly [are]\\n\\nat a severe disadvantage in comparison to [their] opponent.” Id. at 946, 948\\n\\n(internal quotation marks omitted).\\n\\n The summonsed parties in this case assert that requiring non-parties to travel\\n\\nto distant jurisdictions to defend against arbitral summonses serves no federal\\n\\npurpose and that exercising jurisdiction is neither fair nor reasonable. However,\\n\\n“[t]here is nothing inherently burdensome about crossing a state line.” Id. at 946.\\n\\nFurther, the summonsed parties have not shown that the inconvenience of traveling\\n\\nin the present case to litigate their objections to the arbitral summonses rises to the\\n\\nlevel of constitutional concern. Accordingly, the Court need not consider whether\\n 21\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 22 of 34\\n\\n\\nthe “federal interest in litigating the dispute in the chosen forum outweighs the\\n\\nburden imposed” on the summonsed parties. Id. at 948.\\n\\n iv. Pre-Hearing Discovery from Non-Parties\\n\\n As previously explained, the summonsed parties are non-parties to the\\n\\narbitration agreement. Arbitration is a creature of contract and “an arbitrator’s\\n\\nauthority over the parties to an arbitration is limited by the contours of the parties’\\n\\nagreement and those enumerated in the [FAA].” Kennedy v. Am. Express Travel\\n\\nRelated Servs. Co., 646 F. Supp. 2d 1342, 1343 (S.D. Fla. 2009). Non-parties to an\\n\\narbitration agreement have not subjected themselves to the authority of an\\n\\narbitrator and, therefore, have not limited their rights beyond the FAA.\\n\\nAccordingly, the authority for an arbitrator to summons non-parties to produce pre-\\n\\nhearing discovery must be found within the FAA.\\n\\n Section 7 of the FAA allows an arbitrator to “summon in writing any person\\n\\nto attend before them . . . as a witness and in a proper case to bring with him . . .\\n\\nany book, record, document, or paper which may be deemed material as evidence\\n\\nin the case.” 9 U.S.C. § 7. In Hay Group, Inc. v. E.B.S. Acquisition Corp.,\\n\\n360 F.3d 404, 407 (3d Cir. 2004), then-Judge Alito found that the plain language\\n\\nof Section 7 “unambiguously restricts an arbitrator’s subpoena power to situations\\n\\nin which the non-party has been called to appear in the physical presence of the\\n\\narbitrator and to hand over the documents at that time.” The Second, Fourth, and\\n 22\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 23 of 34\\n\\n\\nNinth Circuits have reached similar conclusions that Section 7 is unambiguous and\\n\\ndoes not provide arbitrators with the authority to order non-parties to provide\\n\\ndocuments outside of the presence of the arbitrator. Life Receivables Tr. v.\\n\\nSyndicate 102 at Lloyds of London, 549 F.3d 210, 216 (2d Cir. 2008) (“The\\n\\nlanguage of section 7 is straightforward and unambiguous. Documents are only\\n\\ndiscoverable in arbitration when brought before arbitrators by a testifying\\n\\nwitness.”); COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d 269, 275-76 (4th Cir.\\n\\n1999) (arbitral summons powers are “limited to those created by the express\\n\\nprovisions of the FAA,” which do not include “the authority to order non-parties to\\n\\n. . . provide the litigating parties with documents during prehearing discovery,” but\\n\\na party may petition the court for pre-hearing discovery upon a showing of\\n\\nnecessity); CVS Health Corp. v. Vividus, LLC, 878 F.3d 703, 708 (9th Cir. 2017)\\n\\n(“[S]ection 7 of the FAA does not grant arbitrators the power to order third parties\\n\\nto produce documents prior to an arbitration hearing.”). However, the Eighth\\n\\nCircuit has held that while Section 7 does not “explicitly authorize the arbitration\\n\\npanel to require the production of documents for inspection by a party[,] . . .\\n\\nimplicit in an arbitration panel’s power to subpoena relevant documents for\\n\\nproduction at a hearing is the power to order the production of relevant documents\\n\\n\\n\\n\\n 23\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 24 of 34\\n\\n\\nfor review by a party prior to the hearing.” 5 In re Sec. Life Ins. Co. of Am.,\\n\\n228 F.3d 865, 870-71 (8th Cir. 2000).\\n\\n After analyzing these cases, we agree with the Second, Third, Fourth, and\\n\\nNinth Circuits and hold that the plain language of the statute is unambiguous in\\n\\nrequiring witnesses to appear before an arbitrator and bring any documents with\\n\\nthem, thus prohibiting pre-hearing discovery from non-parties. The FAA confers\\n\\nthe power to compel a non-party to attend an arbitration hearing and bring\\n\\ndocuments, but it is silent regarding the power to compel documents from non-\\n\\nparties without summoning the non-party to testify. See 9 U.S.C. § 7. Thus, the\\n\\nFAA implicitly withholds the power to compel documents from non-parties\\n\\nwithout summoning the non-party to testify. And if Congress intended the\\n\\narbitrators to have the broader power to compel documents from non-parties\\n\\nwithout summoning the non-party to testify, it could have said so. Accordingly,\\n\\nwe conclude that 9 U.S.C. § 7 does not permit pre-hearing depositions and\\n\\ndiscovery from non-parties.\\n\\n We respectfully decline to follow the Eighth Circuit’s reasoning that the\\n\\n“interest in efficiency is furthered by permitting a party to review and digest\\n\\n\\n 5\\n The Sixth Circuit has also authorized a subpoena to a non-party for pre-hearing\\ndocuments, but while the court looked to the FAA for guidance in the labor arbitration case, its\\nholding was limited to Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C.\\n§ 185. Am. Fed’n of Tel. & Radio Artists, AFL-CIO v. WJBK-TV, 164 F.3d 1004, 1009 (6th Cir.\\n1999).\\n 24\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 25 of 34\\n\\n\\nrelevant documentary evidence prior to the arbitration hearing.” In re Sec. Life Ins.\\n\\nCo. of Am., 228 F.3d at 870-71. Simply put, because the plain meaning of the\\n\\nstatute does not permit pre-hearing discovery from non-parties, the policy\\n\\nargument does not supersede the text of the statute.\\n\\n The summonses issued in the present case indicate that the non-parties shall\\n\\nattend a hearing before the arbitrator. The hearing will be held in Miami, Florida,\\n\\nbut the testimony of the non-parties will be taken in their respective locations\\n\\nacross the country and transmitted via video conference. Additionally, the\\n\\nsummonses directed the non-parties to bring certain documents to the video\\n\\nconference.\\n\\n The first issue with the summonses is that the non-parties will not be in the\\n\\nphysical presence of the arbitrator. Instead, the arbitrator will be located in Miami\\n\\nwhile the non-parties are in their respective states, and the hearing will take place\\n\\nvia video conference. We hold that the district court abused its discretion in\\n\\naffirming the magistrate judge’s order granting Managed Care’s motion to compel\\n\\nthe non-parties to comply with the summonses because the district court lacked\\n\\nauthority under Section 7 to do so.\\n\\n “It’s a fundamental canon of statutory construction that words generally\\n\\nshould be interpreted as taking their ordinary meaning at the time Congress\\n\\nenacted the statute.” New Prime v. Oliveira, __ U.S. __, 139 S. Ct. 532, 539-40,\\n 25\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 26 of 34\\n\\n\\n202 L. Ed. 2d 536 (2019) (alterations adopted) (internal quotation marks omitted).\\n\\nCongress passed Section 7 in 1925, so we must ascertain the meaning of\\n\\n“attendance” and “before” in Section 7’s grant of authority to district courts to\\n\\n“compel the attendance of such person or persons before said arbitrator . . . in the\\n\\nsame manner provided by law for securing the attendance of witnesses . . . in the\\n\\ncourts of the United States” as of 1925.6 9 U.S.C. § 7 (emphasis added); see also\\n\\nOliveira, __ U.S. at __, 139 S. Ct. at 539-40 & 540 n.1 (looking to dictionaries\\n\\npublished in the decades surrounding 1925 to determine the meaning of “contracts\\n\\nof employment” in Section 1 of the FAA).\\n\\n Looking to dictionaries from the time of Section 7’s enactment makes clear\\n\\nthat a court order compelling the “attendance” of a witness “before” the arbitrator\\n\\nmeant compelling the witness to be in the physical presence of the arbitrator. In\\n\\n1925, “attendance” meant the “[a]ct of attending,” and “attend” meant “be present\\n\\nat.” See, e.g., H.W. Fowler & F.G. Fowler, The Concise Oxford Dictionary of\\n\\nCurrent English 52 (1926). Similarly, “before” meant “in [the] presence of.” Id.\\n\\nat 74. And “presence” meant “place where person is,” while “present” meant\\n\\n“[b]eing in the place in question.” Id. at 650. Thus, Section 7 does not authorize\\n\\ndistrict courts to compel witnesses to appear in locations outside the physical\\n\\n\\n\\n 6\\n United States Arbitration Act, Pub. L. No. 68-401, § 7, 43 Stat. 883, 884 (1925).\\n 26\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 27 of 34\\n\\n\\npresence of the arbitrator, so the court may not enforce an arbitral summons for a\\n\\nwitness to appear via video conference.\\n\\n The second issue with the video conference concerns the production of\\n\\ndocuments. The summonses do not indicate how the arbitrator will view and\\n\\nconsider the documents brought by the non-parties to the video conference. The\\n\\ndistrict court and magistrate judge went beyond the directive of the summonses to\\n\\nindicate that a video conference is possible and permissible because documents can\\n\\nbe provided in advance to the attorneys and arbitrator, allowing the arbitrator to\\n\\nmake decisions as the evidence is presented. The fundamental problem with the\\n\\ndistrict court’s attempt at resolving the presentation of the documents is that\\n\\nproviding the necessary documents to the arbitrator and attorneys prior to the\\n\\nhearing constitutes pre-hearing discovery that is not authorized by the FAA. CVS\\n\\nHealth Corp., 878 F.3d at 708. Accordingly, the provision of documents prior to\\n\\nthe hearing is not the same as appearing in the physical presence of an arbitrator\\n\\nand bringing documents at the time of the hearing. As a result, this requirement is\\n\\nnot enforceable.\\n\\n “The [arbitrator’s] power to require a non-party to bring items with him\\n\\nclearly applies only to situations in which the non-party accompanies the items to\\n\\nthe arbitration proceeding, not to situations in which the items are simply sent or\\n\\nbrought by a courier.” Hay Grp., 360 F.3d at 407. We look beyond the plain\\n 27\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 28 of 34\\n\\n\\nlanguage of a statute only if applying the statute in accordance with the plain\\n\\nlanguage would lead to an absurd result. Consol. Bank, N.A. v. U.S. Dep’t of\\n\\nTreasury, 118 F.3d 1461, 1463-64 (11th Cir. 1997). Enforcing Section 7’s\\n\\nprohibition on pre-hearing discovery does not lead to an absurd result because it\\n\\nwill force the parties “to consider whether the documents are important enough to\\n\\njustify the time, money, and effort that the subpoenaing parties will be required to\\n\\nexpend if an actual appearance before an arbitrator is needed.” Hay Grp., Inc., 360\\n\\nF.3d at 409. This leads to a redistribution of bargaining power where “the party\\n\\nseeking the documents cannot simply obtain a subpoena requiring the documents\\n\\nto be shipped from one warehouse to another; instead, the party [seeking the\\n\\ndocuments] will be forced to appear at a proceeding during which the documents\\n\\nare produced.” Id. at 411. Additionally, enforcing the bar on pre-hearing\\n\\ndiscovery is beneficial because it will impose some inconvenience on the arbitrator\\n\\nthat will induce the arbitrator to weigh whether the production of the documents is\\n\\nnecessary. See id. at 414 (Chertoff, J., concurring).\\n\\n Accordingly, we interpret the plain meaning of Section 7 as (1) requiring\\n\\nsummonsed non-parties to appear in the physical presence of the arbitrator as\\n\\nopposed to a video conference or teleconference; and (2) prohibiting pre-hearing\\n\\ndiscovery. The district court abused its discretion in enforcing the arbitral\\n\\n\\n 28\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 29 of 34\\n\\n\\nsummonses because the court lacked power under Section 7 to order the witnesses\\n\\nto appear at the video conference and provide pre-hearing discovery.\\n\\n C. The Finality of the Order Denying Enforcement of the Settlement\\n Agreement\\n\\n The district court’s order denying CIGNA’s motion to enforce the\\n\\nSettlement Agreement and compel an accounting constitutes a post-judgment order\\n\\nthat is final and appealable. An order is final when it disposes of all the issues\\n\\nraised in the motion that initiated the post-judgment proceedings. Mayer, 672 F.3d\\n\\nat 1224. While CIGNA’s motion to enforce the Settlement Agreement and compel\\n\\nan accounting was not the motion that triggered the post-judgment proceeding,\\n\\nCIGNA could have filed this motion to start a post-judgment proceeding even if\\n\\nMCAG had not already filed its petition to enforce the arbitral summonses.\\n\\nFurther, the order denying CIGNA’s motion disposed of the entire post-judgment\\n\\naction, leaving nothing more for the district court to do. Accordingly, it is properly\\n\\ncharacterized as a final and appealable order.\\n\\n D. The District Court’s Failure to Enforce the Settlement Agreement\\n and Compel an Accounting\\n\\n The claims pending in the arbitration address Category Two claims that have\\n\\nnot yet been paid, whereas CIGNA’s motion seeks an accounting of what MCAG\\n\\nhas done with the proceeds of the claims that CIGNA has already paid. The\\n\\ndistrict court denied CIGNA’s motion to enforce the Settlement Agreement and\\n 29\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 30 of 34\\n\\n\\ncompel an accounting on the ground that “[t]he Arbitrator shall be allowed to\\n\\narbitrate the claims in the manner he sees fit.” However, the district court abused\\n\\nits discretion by allowing the arbitrator to review the claims that have already been\\n\\npaid, because the district court has a duty to class members to ensure that they\\n\\nreceive what they are entitled to under the Settlement Agreement and may not\\n\\ndefer to the arbitrator to compel an accounting of the claims that fall outside the\\n\\nambit of the arbitration agreement.\\n\\n The district court retained jurisdiction “as to all matters relating to [] the\\n\\ninterpretation, administration, and consummation of the [Settlement] Agreement.”\\n\\nBecause the district court retained jurisdiction over the administration of the\\n\\nSettlement Agreement, which set the terms for how CIGNA would compensate\\n\\nclass members, it has a responsibility to ensure the class members receive that to\\n\\nwhich they are entitled under the Settlement Agreement.\\n\\n The district court’s explicit retention of jurisdiction is consistent with\\n its responsibility, pursuant to Fed. R. Civ. P. 23, to protect the interests\\n of class members . . . . Retention of jurisdiction is enhanced when the\\n court is attempting to protect members of a class action: In a class\\n action, the district court has a duty to class members to see that any\\n settlement it approves is completed, and not merely to approve a\\n promise . . . to pay the relief to which it has decided class members are\\n entitled.\\n\\nAlexander v. Chicago Park Dist., 927 F.2d 1014, 1023 (7th Cir. 1991) (citing In re\\n\\nCorrugated Container Antitrust Litig., 752 F.2d 137, 141 (5th Cir. 1985)) (internal\\n\\n 30\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 31 of 34\\n\\n\\nblock quotation omitted); see also United States v. City. of Miami, 614 F.2d 1322,\\n\\n1331 (5th Cir. 1980) (explaining that courts, in their “role as a fiduciary” and\\n\\n“guardian for the unrepresented class members,” must apply “careful scrutiny . . .\\n\\nto guard against settlements that may benefit the class representatives or their\\n\\nattorneys at the expense of absent class members”).\\n\\n In the present case, the district court retained jurisdiction “as to all matters\\n\\nrelating to [] the interpretation, administration, and consummation of the\\n\\nAgreement.” The motion to enforce the Settlement Agreement and compel an\\n\\naccounting was initiated because CIGNA paid approximately $25 million to\\n\\nMCAG for class members’ claims submitted pursuant to the Settlement Agreement\\n\\nand, based on the record before the Court, it does not appear that class members\\n\\nreceived a significant portion of the funds to which they are entitled. CIGNA paid\\n\\nMCAG approximately $11 million prior to arbitration to distribute to class\\n\\nmembers for claims that were not the subject of the arbitration agreement and $14\\n\\nmillion during arbitration for Category Two claims.7 CIGNA paid these funds to\\n\\nMCAG solely for distribution to class members for their approved claims as\\n\\nrequired by the Settlement Agreement.\\n\\n\\n 7\\n MCAG and CIGNA agreed to arbitrate “final resolution of all issues relating to whether\\nthe claims for Category Two Compensation under the Settlement Agreement . . . submitted by\\nMCAG on behalf of Class Members are payable pursuant to that agreement . . . .” Because\\nCIGNA already has paid $14 million in Category Two claims, these claims are no longer\\n“payable,” and so they fall outside the ambit of the arbitration agreement.\\n 31\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 32 of 34\\n\\n\\n MCAG’s Chief Financial Officer, Douglas Perry, filed a sworn declaration\\n\\nstating that, “CIGNA paid approximately $11 million to MCAG prior to the\\n\\nArbitration in connection with other types of claims. Those moneys were\\n\\ndisbursed to class members.” However, MCAG subsequently admitted during oral\\n\\nargument that it distributed to class members only $7.5 million of the $11 million\\n\\nCIGNA paid for claims that were not the subject of arbitration. At a minimum,\\n\\nthis discrepancy indicates that class members have not received approximately\\n\\n$3.5 million of the funds to which they are entitled under the Settlement\\n\\nAgreement. Therefore, the district court should require an accounting regarding\\n\\nfunds CIGNA paid to MCAG for claims that were not the subject of the arbitration.\\n\\nAlexander, 927 F.2d at 1023.\\n\\n MCAG also admitted during oral argument that it has not distributed any of\\n\\nthe $14 million CIGNA paid to MCAG for Category Two claims since the\\n\\narbitration began. MCAG further admitted that only approximately $4.5 million\\n\\nremains of the $14 million CIGNA paid to MCAG for class members’ Category\\n\\nTwo claims. The physician agreements between MCAG and class members\\n\\nindicate that MCAG would retain at most 30 percent of the recovery amount.\\n\\nTherefore, even if MCAG distributes the remaining $4.5 million to claimants, a\\n\\ntotal of approximately $12 million would be distributed to class members and\\n\\n\\n 32\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 33 of 34\\n\\n\\nMCAG would retain over 50 percent of the total amount paid by CIGNA. This is\\n\\nsignificantly more than the 30 percent agreed to in the physician agreements.\\n\\n An accounting will provide information regarding how settlement proceeds\\n\\nhave been distributed because there is no formal record of what MCAG did with\\n\\napproximately $3.5 million in paid claims that were not the subject of the\\n\\narbitration and $9.5 million in paid Category Two claims that should have gone to\\n\\nclass members under the Settlement Agreement. See Alexander, 927 F.2d at 1023.\\n\\nAdditionally, MCAG is in possession of $4.5 million of the Category Two funds\\n\\nand has not indicated how those funds will be paid to the class members who are\\n\\nentitled to receive them.\\n\\n IV. CONCLUSION\\n\\n This litigation has been ongoing for almost twenty years, but it appears that\\n\\nmost of the money CIGNA paid to MCAG for the class members has not been\\n\\ndistributed. The district court should require an expeditious accounting of all funds\\n\\nCIGNA previously paid to MCAG for the benefit of the class members. The\\n\\naccounting should include any interest earned on the funds paid to MCAG. 8\\n\\n\\n\\n\\n 8\\n We deny as moot CIGNA’s first motion to supplement the record. On remand, CIGNA\\nmay move the district court for permission to refile these documents on the district court’s\\ndocket. We also deny as moot CIGNA’s motion for clarification regarding oral argument.\\n 33\\n\\f Case: 17-13761 Date Filed: 09/18/2019 Page: 34 of 34\\n\\n\\n The judgment of the district court is REVERSED, and this case is\\n\\nREMANDED for further proceedings consistent with this opinion.\\n\\n\\n\\n\\n 34\\n[END_CASE]\",\n \"role\": \"user\"\n }\n]","isConversational":true}}}],"truncated":false,"partial":false},"paginationData":{"pageIndex":44,"numItemsPerPage":100,"numTotalItems":31175,"offset":4400,"length":100}},"jwt":"eyJhbGciOiJFZERTQSIsImtpZCI6IjVHZDBvd0g5MTM2eDZjc1FvbE1zcktNWUZoRVFoUm5PVVVybEpjOUhaUEEifQ.eyJyZWFkIjp0cnVlLCJwZXJtaXNzaW9ucyI6eyJyZXBvLmNvbnRlbnQucmVhZCI6dHJ1ZX0sImlhdCI6MTc4NjUzOTAxNCwianRpIjoiMjc5ZjM2Y2EtNzhmYi00ZTFiLTkxNTYtNzY3YTVjNzNiNzA0Iiwic3ViIjoiL2RhdGFzZXRzL2VpdGFucy1wdS9jbC1jb2RpbmctaW5wdXQiLCJleHAiOjE3ODY1NDI2MTQsImlzcyI6Imh0dHBzOi8vaHVnZ2luZ2ZhY2UuY28ifQ.7w5DHrjjeh9Fn7vvSx2q-QDYLk-cpei9uZj2tW_KX4Q8Nxwvn9H66JsIuQXuf_HkyamBQeor6wqSaue4lZGsDQ","displayUrls":true,"splitSizeSummaries":[{"config":"default","split":"train","numRows":31175,"numBytesParquet":1629387251}]},"discussionsStats":{"closed":0,"open":1,"total":1},"fullWidth":true,"hasGatedAccess":true,"hasFullAccess":true,"isEmbedded":false,"savedQueries":{"community":[],"user":[]}}">
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4,664,405 | Patricia Koehn v. Delta Outsource Group, Incorpo | 2019-09-25 | 19-1088 | U.S. Court of Appeals for the Seventh Circuit | {"judges": "Before KANNE, HAMILTON, and SCUDDER, Circuit Judges.", "parties": "", "opinions": [{"author": "David Frank Hamilton", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 19-1088\nPATRICIA ANN K... | KANNE | HAMILTON | SCUDDER | 1 | {"KANNE": ", Circuit", "HAMILTON": ", Circuit", "SCUDDER": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4664405/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,664,604 | Carl Leeper v. Hamilton County Coal, LLC | 2019-09-26 | 19-1109 | U.S. Court of Appeals for the Seventh Circuit | {"judges": "Before RIPPLE, MANION, and SYKES, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 19-1109\nCARL LEEPER, individuall... | RIPPLE | MANION | SYKES | 1 | {"RIPPLE": ", Circuit", "MANION": ", Circuit", "SYKES": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4664604/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,664,679 | The Estate of Swannie Her v. Craig Hoeppner | 2019-09-26 | 18-3524 | U.S. Court of Appeals for the Seventh Circuit | {"judges": "Before KANNE, SYKES, and BRENNAN, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-3524\nTHE ESTATE OF SWANNIE HER... | KANNE | SYKES | BRENNAN | 1 | {"KANNE": ", Circuit", "SYKES": ", Circuit", "BRENNAN": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4664679/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,664,680 | Carl Leeper v. Hamilton County Coal, LLC | 2019-09-26 | 19-1109 | U.S. Court of Appeals for the Seventh Circuit | {"judges": "Before RIPPLE, MANION, and SYKES, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 19-1109\nCARL LEEPER, individuall... | RIPPLE | MANION | SYKES | 1 | {"RIPPLE": ", Circuit", "MANION": ", Circuit", "SYKES": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4664680/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,664,824 | The Estate of Swannie Her v. Craig Hoeppner | 2019-09-26 | 18-3524 | U.S. Court of Appeals for the Seventh Circuit | {"judges": "Before KANNE, SYKES, and BRENNAN, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-3524\nTHE ESTATE OF SWANNIE HER... | KANNE | SYKES | BRENNAN | 1 | {"KANNE": ", Circuit", "SYKES": ", Circuit", "BRENNAN": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4664824/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,664,825 | Matthew Braxton v. Jerome Senegal | 2019-09-26 | 19-1141 | U.S. Court of Appeals for the Seventh Circuit | {"judges": "Before EASTERBROOK, KANNE, and BRENNAN, Circuit Judg- es.", "parties": "", "opinions": [{"author": "Frank Hoover Easterbrook", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\n\nNo. 19-11... | EASTERBROOK | KANNE | BRENNAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4664825/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,664,890 | Matthew Braxton v. Jerome Senegal | 2019-09-26 | 19-1141 | U.S. Court of Appeals for the Seventh Circuit | {"judges": "Before EASTERBROOK, KANNE, and BRENNAN, Circuit Judg- es.", "parties": "", "opinions": [{"author": "Frank Hoover Easterbrook", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\n\nNo. 19-11... | EASTERBROOK | KANNE | BRENNAN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4664890/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,665,675 | United States v. Anthony Loren Gardner | 2019-09-30 | 18-1731 | U.S. Court of Appeals for the Seventh Circuit | {"judges": "Before FLAUM, KANNE, and SYKES, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1731\nUNITED STATES OF AMERIC... | FLAUM | KANNE | SYKES | 1 | {"FLAUM": ", Circuit", "KANNE": ", Circuit", "SYKES": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4665675/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,665,676 | John Vergara v. City of Chicago | 2019-09-30 | 18-1266 | U.S. Court of Appeals for the Seventh Circuit | {"judges": "Before MANION, SYKES, and BRENNAN, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1266\nJOHN VERGARA, et al.,\... | MANION | SYKES | BRENNAN | 1 | {"MANION": ", Circuit", "SYKES": ", Circuit", "BRENNAN": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4665676/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,665,699 | United States v. Cordell Collins | 2019-09-30 | 18-3011 | U.S. Court of Appeals for the Seventh Circuit | {"judges": "Before FLAUM, EASTERBROOK, and MANION, Circuit Judges.", "parties": "", "opinions": [{"author": "Joel Martin Flaum", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-3011\nUNITED STATES O... | FLAUM | EASTERBROOK | MANION | 1 | {"FLAUM": ", Circuit", "EASTERBROOK": ", Circuit", "MANION": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4665699/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,665,700 | United States v. Anthony Loren Gardner | 2019-09-30 | 18-1731 | U.S. Court of Appeals for the Seventh Circuit | {"judges": "Before FLAUM, KANNE, and SYKES, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1731\nUNITED STATES OF AMERIC... | FLAUM | KANNE | SYKES | 1 | {"FLAUM": ", Circuit", "KANNE": ", Circuit", "SYKES": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4665700/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,665,701 | John Vergara v. City of Chicago | 2019-09-30 | 18-1266 | U.S. Court of Appeals for the Seventh Circuit | {"judges": "Before MANION, SYKES, and BRENNAN, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1266\nJOHN VERGARA, et al.,\... | MANION | SYKES | BRENNAN | 1 | {"MANION": ", Circuit", "SYKES": ", Circuit", "BRENNAN": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4665701/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,665,772 | United States v. Cordell Collins | 2019-09-30 | 18-3011 | U.S. Court of Appeals for the Seventh Circuit | {"judges": "Before FLAUM, EASTERBROOK, and MANION, Circuit Judges.", "parties": "", "opinions": [{"author": "Joel Martin Flaum", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-3011\nUNITED STATES O... | FLAUM | EASTERBROOK | MANION | 1 | {"FLAUM": ", Circuit", "EASTERBROOK": ", Circuit", "MANION": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4665772/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,665,773 | United States v. Anthony Loren Gardner | 2019-09-30 | 18-1731 | U.S. Court of Appeals for the Seventh Circuit | {"judges": "Before FLAUM, KANNE, and SYKES, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1731\nUNITED STATES OF AMERIC... | FLAUM | KANNE | SYKES | 1 | {"FLAUM": ", Circuit", "KANNE": ", Circuit", "SYKES": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4665773/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,665,774 | John Vergara v. City of Chicago | 2019-09-30 | 18-1266 | U.S. Court of Appeals for the Seventh Circuit | {"judges": "Before MANION, SYKES, and BRENNAN, Circuit Judges.", "parties": "", "opinions": [{"author": "Diane S. Sykes", "type": "010combined", "text": "In the\n\n United States Court of Appeals\n For the Seventh Circuit\n ____________________\nNo. 18-1266\nJOHN VERGARA, et al.,\... | MANION | SYKES | BRENNAN | 1 | {"MANION": ", Circuit", "SYKES": ", Circuit", "BRENNAN": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4665774/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,658,253 | United States v. Matthew Rouse | 2019-09-03 | 18-2554 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before COLLOTON, BEAM, and SHEPHERD, Circuit Judges.", "parties": "", "opinions": [{"author": "COLLOTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n ... | COLLOTON | BEAM | SHEPHERD | 1 | {"COLLOTON": ", Circuit", "BEAM": ", Circuit", "SHEPHERD": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4658253/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,658,256 | Sharon Engle v. Land O'Lakes, Inc. | 2019-09-03 | 18-2821 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before SMITH, Chief Judge, ARNOLD and KELLY, Circuit Judges.", "parties": "", "opinions": [{"author": "ARNOLD, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n ... | SMITH | ARNOLD | KELLY | 1 | {"SMITH": ", Chief", "ARNOLD": ", Circuit", "KELLY": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4658256/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,658,258 | Dedra RUDLEY, and Minor Child M.D.B. Plaintiff - Appellee v. LITTLE ROCK POLICE DEPARTMENT; City of Little Rock Defendants Hubert Bryant, in His Individual and Official Capacity; Chris Oldham, in His Individual and Official Capacity Defendants - Appellants Kenton Buckner, Chief of Police, in His Individual and Official... | Rudley v. Little Rock Police Dep't | 2019-09-03 | 18-2533 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Loken, Wollman, Stras", "parties": "", "opinions": [{"author": "WOLLMAN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-2533\n ... | LOKEN | WOLLMAN | STRAS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4658258/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,658,515 | Morgan Pearson v. Logan University | 2019-09-04 | 18-2764 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before SMITH, Chief Judge, KELLY and KOBES, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n ... | SMITH | KELLY | KOBES | 1 | {"SMITH": ", Chief", "KELLY": ", Circuit", "KOBES": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4658515/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,658,786 | Kayla Robinson v. Angela Hawkins | 2019-09-05 | 18-1823 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.", "parties": "", "opinions": [{"author": "ERICKSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n __________________________... | SMITH | COLLOTON | ERICKSON | 1 | {"SMITH": ", Chief", "COLLOTON": ", Circuit", "ERICKSON": ", Circuit"} | 3 | 0 | 0 | 2 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4658786/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,659,063 | Kayla Robinson v. Angela Hawkins | 2019-09-05 | 18-1823 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.", "parties": "", "opinions": [{"author": "ERICKSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n __________________________... | SMITH | COLLOTON | ERICKSON | 1 | {"SMITH": ", Chief", "COLLOTON": ", Circuit", "ERICKSON": ", Circuit"} | 3 | 0 | 0 | 2 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659063/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,659,061 | Flandreau Santee Sioux Tribe v. Kristi Noem | 2019-09-06 | 18-1271 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before LOKEN, COLLOTON, and KELLY, Circuit Judges.", "parties": "", "opinions": [{"author": "LOKEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n ... | LOKEN | COLLOTON | KELLY | 1 | {"LOKEN": ", Circuit", "COLLOTON": ", Circuit", "KELLY": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659061/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,659,062 | Flandreau Santee Sioux Tribe v. Josh Haeder | 2019-09-06 | 18-2750 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before LOKEN, COLLOTON, and KELLY, Circuit Judges.", "parties": "", "opinions": [{"author": "LOKEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n ... | LOKEN | COLLOTON | KELLY | 1 | {"LOKEN": ", Circuit", "COLLOTON": ", Circuit", "KELLY": ", Circuit"} | 3 | 0 | 1 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659062/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,659,324 | UNITED STATES of America Plaintiff - Appellee v. Keith Morgan BLOCK Defendant - Appellant | United States v. Keith Block | 2019-09-09 | 18-2470 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Gruender, Stras, Kobes", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-2470\n ... | GRUENDER | STRAS | KOBES | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659324/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,659,564 | Roger Brooks v. Liberty Life Assurance Company | 2019-09-10 | 18-2612 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before GRUENDER, STRAS, and KOBES, Circuit Judges.", "parties": "", "opinions": [{"author": "STRAS, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n ... | GRUENDER | STRAS | KOBES | 1 | {"GRUENDER": ", Circuit", "STRAS": ", Circuit", "KOBES": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659564/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,659,963 | United States v. Momodu Babu Sesay | 2019-09-11 | 18-1071 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before COLLOTON, KELLY, and ERICKSON, Circuit Judges.", "parties": "", "opinions": [{"author": "COLLOTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 18-1071\n _____________________... | COLLOTON | KELLY | ERICKSON | 1 | {"COLLOTON": ", Circuit", "KELLY": ", Circuit", "ERICKSON": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659963/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,659,965 | Southern Bakeries, LLC v. NLRB | 2019-09-11 | 18-2370 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.", "parties": "", "opinions": [{"author": "LOKEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n ... | LOKEN | WOLLMAN | STRAS | 1 | {"LOKEN": ", Circuit", "WOLLMAN": ", Circuit", "STRAS": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659965/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,659,966 | Justin Anderson v. Wendy Kelley | 2019-09-11 | 17-2456 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before GRUENDER, STRAS, and KOBES, Circuit Judges.", "parties": "", "opinions": [{"author": "GRUENDER, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n ... | GRUENDER | STRAS | KOBES | 1 | {"GRUENDER": ", Circuit", "STRAS": ", Circuit", "KOBES": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659966/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,659,967 | John Van Orden v. Mark Stringer | 2019-09-11 | 17-3093 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before COLLOTON, BEAM, and GRASZ, Circuit Judges.", "parties": "", "opinions": [{"author": "COLLOTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n ... | COLLOTON | BEAM | GRASZ | 1 | {"COLLOTON": ", Circuit", "BEAM": ", Circuit", "GRASZ": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659967/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,659,971 | Charles Hamner v. Danny Burls | 2019-09-11 | 18-2181 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before COLLOTON, GRUENDER, and ERICKSON, Circuit Judges.", "parties": "", "opinions": [{"author": "COLLOTON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n ... | COLLOTON | GRUENDER | ERICKSON | 1 | {"COLLOTON": ", Circuit", "GRUENDER": ", Circuit", "ERICKSON": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659971/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,660,373 | Charles Jackson v. Billy D. Stair, III | 2019-09-12 | 18-2617 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before ERICKSON, WOLLMAN, and GRASZ, Circuit Judges.", "parties": "", "opinions": [{"author": "ERICKSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n ... | ERICKSON | WOLLMAN | GRASZ | 1 | {"ERICKSON": ", Circuit", "WOLLMAN": ", Circuit", "GRASZ": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4660373/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,661,216 | United States v. Kevin Jay Mast | 2019-09-16 | 18-1861 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before LOKEN, COLLOTON, and KELLY, Circuit Judges.", "parties": "", "opinions": [{"author": "KELLY, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n ... | LOKEN | COLLOTON | KELLY | 1 | {"LOKEN": ", Circuit", "COLLOTON": ", Circuit", "KELLY": ", Circuit"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4661216/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,661,466 | United States v. Kevin Jay Mast | 2019-09-16 | 18-1861 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before LOKEN, COLLOTON, and KELLY, Circuit Judges.", "parties": "", "opinions": [{"author": "KELLY, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n ... | LOKEN | COLLOTON | KELLY | 1 | {"LOKEN": ", Circuit", "COLLOTON": ", Circuit", "KELLY": ", Circuit"} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4661466/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,661,464 | Massage Envy Franchising v. Mark Pirozzi | 2019-09-17 | 19-8014 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before LOKEN, SHEPHERD, and GRASZ, Circuit Judges.", "parties": "", "opinions": [{"author": "LOKEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n ... | LOKEN | SHEPHERD | GRASZ | 1 | {"LOKEN": ", Circuit", "SHEPHERD": ", Circuit", "GRASZ": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4661464/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,662,424 | Ronnoco Coffee, LLC. v. Westfeldt Brothers, Inc. | 2019-09-19 | 18-1498 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before LOKEN, WOLLMAN, and STRAS, Circuit Judges.", "parties": "", "opinions": [{"author": "LOKEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n ... | LOKEN | WOLLMAN | STRAS | 1 | {"LOKEN": ", Circuit", "WOLLMAN": ", Circuit", "STRAS": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4662424/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,662,425 | Rodney Minter v. Jerry Bartruff | 2019-09-19 | 18-2468 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before LOKEN, KELLY, and ERICKSON, Circuit Judges.", "parties": "", "opinions": [{"author": "LOKEN, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n ... | LOKEN | KELLY | ERICKSON | 1 | {"LOKEN": ", Circuit", "KELLY": ", Circuit", "ERICKSON": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4662425/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,664,104 | United States v. Anthony Wilson | 2019-09-25 | 18-2591 | U.S. Court of Appeals for the Eighth Circuit | {"judges": "Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.", "parties": "", "opinions": [{"author": "ERICKSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n... | SMITH | COLLOTON | ERICKSON | 1 | {"SMITH": ", Chief", "COLLOTON": ", Circuit", "ERICKSON": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4664104/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,658,289 | Joshua Ward v. United States | 2019-09-03 | 17-35563 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Richard A. Paez and Carlos T. Bea, Circuit Judges, and C. Ashley Royal, * District Judge.", "parties": "", "opinions": [{"author": "PAEZ, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n JOSHUA ALLEN WARD, ... | RICHARD A PAEZ | CARLOS T BEA | C ASHLEY ROYAL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4658289/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,658,290 | Blanca Argelia Arias v. Residence Inn by Marriott | 2019-09-03 | 19-55803 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Consuelo M. Callahan, D. Michael Fisher, * and Morgan Christen, Circuit Judges.", "parties": "", "opinions": [{"author": "CALLAHAN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n BLANCA ARGELIA ARIAS, ... | CONSUELO M CALLAHAN | D MICHAEL FISHER | MORGAN CHRISTEN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4658290/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,658,535 | Micah Jessop v. City of Fresno | 2019-09-04 | 17-16756 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: MILAN D. SMITH, JR., JACQUELINE H. NGUYEN, Circuit Judges, and JANE A. RESTANI,* Judge.", "parties": "", "opinions": [{"type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n MICAH JESSOP; BRITTAN No. 17-16756\n... | MILAN D SMITH JR | JACQUELINE H NGUYEN | JANE A RESTANI | 1 | {"MILAN D SMITH JR": ", Circuit", "JACQUELINE H NGUYEN": ", Circuit", "JANE A RESTANI": ","} | 3 | 0 | 0 | 2 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4658535/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,658,536 | Hui Mu v. William Barr | 2019-09-04 | 16-71292 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: N. Randy Smith, Paul J. Watford, and Ryan D. Nelson, Circuit Judges.", "parties": "", "opinions": [{"author": "N.R. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nHUI RAN MU, ... | N RANDY SMITH | PAUL J WATFORD | RYAN D NELSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4658536/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,658,815 | United States v. Samir Benamor | 2019-09-05 | 17-50308 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Susan P. Graber and Jay S. Bybee, Circuit Judges, and M. Douglas Harpool,* District Judge.", "parties": "", "opinions": [{"author": "GRABER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES OF A... | SUSAN P GRABER | JAY S BYBEE | M DOUGLAS HARPOOL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4658815/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,658,816 | United States v. Robert Waggy | 2019-09-05 | 18-30171 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: A. Wallace Tashima, Susan P. Graber, and John B. Owens, Circuit Judges.", "parties": "", "opinions": [{"author": "GRABER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, No.... | A WALLACE TASHIMA | SUSAN P GRABER | JOHN B OWENS | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4658816/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,658,817 | Richard Clark v. Kevin Chappell | 2019-09-05 | 14-99005 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Consuelo M. Callahan, Sandra S. Ikuta, and John B. Owens, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nRICHARD DEAN CLARK, No. 14-99005... | CONSUELO M CALLAHAN | SANDRA S IKUTA | JOHN B OWENS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4658817/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,658,818 | Louis Branch v. D. Umphenour | 2019-09-05 | 17-15369 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Mary M. Schroeder and Milan D. Smith, Jr., Circuit Judges, and Jed S. Rakoff, * District Judge.", "parties": "", "opinions": [{"author": "RAKOFF, District Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n LOUIS BRANCH, ... | MARY M SCHROEDER | MILAN D SMITH JR | JED S RAKOFF | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4658818/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,658,819 | Christian Head v. Robert Wilkie | 2019-09-05 | 17-55942 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: A. Wallace Tashima and Richard A. Paez, Circuit Judges, and Gary S. Katzmann, * Judge.", "parties": "", "opinions": [{"author": "PAEZ, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n CHRISTIAN HEAD, M.D., ... | A WALLACE TASHIMA | RICHARD A PAEZ | GARY S KATZMANN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4658819/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,659,090 | US Ex Rel. Geraldine Godecke v. Kinetic Concepts, Inc. | 2019-09-06 | 18-55246 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: A. Wallace Tashima and Jay S. Bybee, Circuit Judges, and M. Douglas Harpool,* District Judge.", "parties": "", "opinions": [{"author": "TASHIMA, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n GERALDINE GODE... | A WALLACE TASHIMA | JAY S BYBEE | M DOUGLAS HARPOOL | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659090/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,659,091 | Pcffa v. Donald Glaser | 2019-09-06 | 17-17130 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: MARY M. SCHROEDER and MILAN D. SMITH, JR., Circuit Judges, and DOUGLAS L. RAYES, * District Judge.", "parties": "", "opinions": [{"author": "M. SMITH, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nPACIFIC COAST... | MARY M SCHROEDER | MILAN D SMITH JR | DOUGLAS L RAYES | 1 | {"MARY M SCHROEDER": "MILAN D SMITH, JR , Circuit", "MILAN D SMITH JR": "MILAN D SMITH, JR , Circuit", "DOUGLAS L RAYES": ", District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659091/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,659,367 | Waverly Kaffaga v. Thomas Steinbeck | 2019-09-09 | 18-55336 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Richard C. Tallman, Sandra S. Ikuta, and N. Randy Smith, Circuit Judges.", "parties": "", "opinions": [{"author": "TALLMAN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nWAVERLY SCOTT KAFFAGA, as ... | RICHARD C TALLMAN | SANDRA S IKUTA | N RANDY SMITH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659367/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,659,368 | Sam Leslie v. Haig Mihranian | 2019-09-09 | 17-60090 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Mary M. Schroeder and Susan P. Graber, Circuit Judges, and Michael H. Watson,* District Judge.", "parties": "", "opinions": [{"author": "WATSON, District Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nIN RE MARDIROS HAI... | MARY M SCHROEDER | SUSAN P GRABER | MICHAEL H WATSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659368/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,659,369 | Hiq Labs, Inc. v. Linkedin Corporation | 2019-09-09 | 17-16783 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: J. Clifford Wallace and Marsha S. Berzon, Circuit Judges, and Terrence Berg, * District Judge.", "parties": "", "opinions": [{"author": "BERZON, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nHIQ LABS, INC., ... | J CLIFFORD WALLACE | MARSHA S BERZON | TERRENCE BERG | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659369/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,659,602 | Victory Processing, LLC v. Tim Fox | 2019-09-10 | 18-35163 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Ronald M. Gould and Richard A. Paez, Circuit Judges, and Janis Graham Jack, * District Judge.", "parties": "", "opinions": [{"author": "PAEZ, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n VICTORY PROCESSING,... | RONALD M GOULD | RICHARD A PAEZ | JANIS GRAHAM JACK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659602/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,660,027 | United States v. Roger Campbell, II | 2019-09-11 | 17-10561 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Marsha S. Berzon, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, No. 17-10561\n P... | MARSHA S BERZON | JOHNNIE B RAWLINSON | PAUL J WATFORD | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4660027/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,660,028 | Secretary of Labor v. Seward Ship's Drydock, Inc. | 2019-09-11 | 18-71216 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: A. Wallace Tashima, William A. Fletcher, and Marsha S. Berzon, Circuit Judges.", "parties": "", "opinions": [{"author": "W. FLETCHER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nSECRETARY OF LABOR, U.S. ... | A WALLACE TASHIMA | WILLIAM A FLETCHER | MARSHA S BERZON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4660028/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,660,029 | Randy Rudel v. Hawaii Management Alliance | 2019-09-11 | 17-17395 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Sidney R. Thomas, Chief Judge, and Consuelo M. Callahan and Morgan Christen, Circuit Judges.", "parties": "", "opinions": [{"author": "Opinion by Chief Judge Thomas", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nRANDY RUDEL, ... | SIDNEY R THOMAS | CONSUELO M CALLAHAN | MORGAN CHRISTEN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4660029/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,660,030 | Eric Garris v. Fbi | 2019-09-11 | 18-15416 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: A. Wallace Tashima, William A. Fletcher, and Marsha S. Berzon, Circuit Judges.", "parties": "", "opinions": [{"author": "TASHIMA, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nERIC ANTHONY GARRIS, ... | A WALLACE TASHIMA | WILLIAM A FLETCHER | MARSHA S BERZON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4660030/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,660,031 | David Ramirez v. Charles Ryan | 2019-09-11 | 10-99023 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Sidney R. Thomas, Chief Judge, and Marsha S. Berzon and Richard R. Clifton, Circuit Judges.", "parties": "", "opinions": [{"author": "Opinion by Chief Judge Thomas", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nDAVID MARTINEZ ... | SIDNEY R THOMAS | MARSHA S BERZON | RICHARD R CLIFTON | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4660031/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,660,032 | City of San Juan Capistrano v. Cpuc | 2019-09-11 | 17-56693 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Andrew J. Kleinfeld, Jacqueline H. Nguyen, and Ryan D. Nelson, Circuit Judges.", "parties": "", "opinions": [{"author": "R. NELSON, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nCITY OF SAN JUAN CAPISTRANO, a ... | ANDREW J KLEINFELD | JACQUELINE H NGUYEN | RYAN D NELSON | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4660032/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,660,482 | Secretary of Labor v. Seward Ship's Drydock, Inc. | 2019-09-11 | 18-71216 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: A. Wallace Tashima, William A. Fletcher, and Marsha S. Berzon, Circuit Judges.", "parties": "", "opinions": [{"author": "W. FLETCHER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nSECRETARY OF LABOR, U.S. ... | A WALLACE TASHIMA | WILLIAM A FLETCHER | MARSHA S BERZON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4660482/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,660,479 | United States v. Simon Hong | 2019-09-12 | 17-50011 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Richard A. Paez and Richard R. Clifton, Circuit Judges, and Morrison C. England, Jr., * District Judge.", "parties": "", "opinions": [{"author": "PAEZ, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED ST... | RICHARD A PAEZ | RICHARD R CLIFTON | MORRISON C ENGLAND JR | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4660479/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,660,480 | Enigma Software Group USA v. Malwarebytes Inc. | 2019-09-12 | 17-17351 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Mary M. Schroeder and Johnnie B. Rawlinson, Circuit Judges, and Robert S. Lasnik,* District Judge.", "parties": "", "opinions": [{"author": "SCHROEDER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n ENIGMA ... | MARY M SCHROEDER | JOHNNIE B RAWLINSON | ROBERT S LASNIK | 1 | {} | 3 | 0 | 1 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4660480/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,660,481 | Andrew Roberts v. City & County of Honolulu | 2019-09-12 | 16-16179 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Kim McLane Wardlaw, Marsha S. Berzon, and Johnnie B. Rawlinson, Circuit Judges.", "parties": "", "opinions": [{"author": "RAWLINSON, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nANDREW NAMIKI ROBERTS, ... | KIM MCLANE WARDLAW | MARSHA S BERZON | JOHNNIE B RAWLINSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4660481/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,661,249 | United States v. Thomas Schopp | 2019-09-16 | 16-30185 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: A. Wallace Tashima, William A. Fletcher, and Marsha S. Berzon, Circuit Judges.", "parties": "", "opinions": [{"author": "BERZON, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, ... | A WALLACE TASHIMA | WILLIAM A FLETCHER | MARSHA S BERZON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4661249/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,661,504 | United States v. Nahach Garay | 2019-09-17 | 18-50054 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Mary M. Schroeder and Susan P. Graber, Circuit Judges, and Michael H. Watson,* District Judge.", "parties": "", "opinions": [{"author": "SCHROEDER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STAT... | MARY M SCHROEDER | SUSAN P GRABER | MICHAEL H WATSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4661504/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,661,505 | Royal Wulff Ventures LLC v. Primero Mining Corp. | 2019-09-17 | 17-56367 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Kim McLane Wardlaw and Mark J. Bennett, Circuit Judges, and William K. Sessions III, * District Judge.", "parties": "", "opinions": [{"author": "WARDLAW, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nROYAL WULF... | KIM MCLANE WARDLAW | MARK J BENNETT | WILLIAM K SESSIONS III | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4661505/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,661,506 | First Amendment Coalition v. Charles Ryan | 2019-09-17 | 17-16330 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Marsha S. Berzon, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges.", "parties": "", "opinions": [{"author": "WATFORD, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nFIRST AMENDMENT COALITION OF ... | MARSHA S BERZON | JOHNNIE B RAWLINSON | PAUL J WATFORD | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4661506/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,662,034 | Zayn Al-Abidin Husayn v. United States | 2019-09-18 | 18-35218 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Ronald M. Gould and Richard A. Paez, Circuit Judges, and Dean D. Pregerson, * District Judge.", "parties": "", "opinions": [{"author": "PAEZ, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n ZAYN AL-ABIDIN MUHA... | RONALD M GOULD | RICHARD A PAEZ | DEAN D PREGERSON | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4662034/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,662,035 | Jose Cruz Pleitez v. William Barr | 2019-09-18 | 15-72876 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Mary M. Schroeder and Susan P. Graber, Circuit Judges, and Michael H. Watson,** District Judge.", "parties": "", "opinions": [{"author": "GRABER, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n JOSE CRISTOBA... | MARY M SCHROEDER | SUSAN P GRABER | MICHAEL H WATSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4662035/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,662,036 | American Diabetes Ass'n v. US Dept. of the Army | 2019-09-18 | 18-15242 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Eugene E. Siler, * Michael Daly Hawkins, and Jacqueline H. Nguyen, Circuit Judges.", "parties": "", "opinions": [{"author": "HAWKINS, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nAMERICAN DIABETES ASSOCIATION,... | EUGENE E SILER | MICHAEL DALY HAWKINS | JACQUELINE H NGUYEN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4662036/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,662,527 | United States v. Alan Shelby | 2019-09-19 | 18-35515 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Mary H. Murguia and Andrew D. Hurwitz, Circuit Judges, and Jennifer G. Zipps, * District Judge.", "parties": "", "opinions": [{"author": "HURWITZ, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES ... | MARY H MURGUIA | ANDREW D HURWITZ | JENNIFER G ZIPPS | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4662527/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,662,528 | Shelly Ioane v. Jean Noll | 2019-09-19 | 16-16089 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Carlos T. Bea and Mary H. Murguia, Circuit Judges, and Donald W. Molloy, * District Judge.", "parties": "", "opinions": [{"author": "MURGUIA, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nSHELLY J. IOANE, ... | CARLOS T BEA | MARY H MURGUIA | DONALD W MOLLOY | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4662528/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,662,529 | Pit River Tribe v. Blm | 2019-09-19 | 17-15616 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: William A. Fletcher and Morgan Christen, Circuit Judges, and Roslyn O. Silver,* District Judge.", "parties": "", "opinions": [{"author": "CHRISTEN, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nPIT RIVER TRIBE;... | WILLIAM A FLETCHER | MORGAN CHRISTEN | ROSLYN O SILVER | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4662529/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,662,545 | United States v. Robert Collazo | 2019-09-19 | 15-50509 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "", "parties": "", "opinions": [{"author": "THOMAS, Chief Judge", "type": "010combined", "text": "FOR PUBLICATION FILED\n UNITED STATES COURT OF APPEALS SEP 19 2019\n MOLLY C. DWYER, CLERK\n ... | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4662545/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||||||
4,662,893 | Mary Riggs v. Airbus Helicopters, Inc. | 2019-09-20 | 18-16396 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Mary M. Schroeder, Diarmuid F. O’Scannlain, and Johnnie B. Rawlinson, Circuit Judges.", "parties": "", "opinions": [{"author": "RAWLINSON, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nMARY RIGGS, as Personal ... | MARY M SCHROEDER | DIARMUID F O'SCANNLAIN | JOHNNIE B RAWLINSON | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4662893/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,662,894 | Albert Goodman v. Bert Dohmen | 2019-09-20 | 17-56330 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Johnnie B. Rawlinson and Mary H. Murguia, Circuit Judges, and James Rodney Gilstrap, * District Judge.", "parties": "", "opinions": [{"author": "Judge for the Eastern District of Texas, sitting by designation", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n ... | JOHNNIE B RAWLINSON | MARY H MURGUIA | JAMES RODNEY GILSTRAP | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4662894/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,663,417 | United States v. Cesar Becerra | 2019-09-23 | 17-30050 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Susan P. Graber and Marsha S. Berzon, Circuit Judges, and Eduardo C. Robreno, * District Judge.", "parties": "", "opinions": [{"author": "BERZON, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n UNITED STATES O... | SUSAN P GRABER | MARSHA S BERZON | EDUARDO C ROBRENO | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4663417/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,663,418 | Protect Our Communities v. Darryl Lacounte | 2019-09-23 | 17-55647 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Ronald M. Gould and Mary H. Murguia, Circuit Judges, and Carol Bagley Amon, * District Judge.", "parties": "", "opinions": [{"author": "GOULD, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nPROTECT OUR COMMUNITI... | RONALD M GOULD | MARY H MURGUIA | CAROL BAGLEY AMON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4663418/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,663,419 | Cerner Middle East Limited v. Icapital, LLC | 2019-09-23 | 17-35514 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Richard R. Clifton and Consuelo M. Callahan, Circuit Judges, and Roger T. Benitez,* District Judge.", "parties": "", "opinions": [{"author": "CLIFTON, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\n CERNER M... | RICHARD R CLIFTON | CONSUELO M CALLAHAN | ROGER T BENITEZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4663419/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,663,420 | Cerner Middle East Limited v. Belbadi Enterprises LLC | 2019-09-23 | 17-35157 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Richard R. Clifton and Consuelo M. Callahan, Circuit Judges, and Roger T. Benitez,* District Judge.", "parties": "", "opinions": [{"author": "CLIFTON, Circuit Judge:", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n CERNER MID... | RICHARD R CLIFTON | CONSUELO M CALLAHAN | ROGER T BENITEZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4663420/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,663,717 | Gerardo Vazquez v. Jan-Pro Franchising Int'l Inc. | 2019-09-24 | 17-16096 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block, District Judge.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nGERARDO VAZQUEZ, GLORIA ... | RONALD M GOULD | MARSHA S BERZON | FREDERIC BLOCK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4663717/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,663,718 | Gerardo Vazquez v. Jan-Pro Franchising Int'l Inc. | 2019-09-24 | 17-16096 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block, District Judge.", "parties": "", "opinions": [{"author": "The Honorable Frederic Block, United States District Judge for the", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR T... | RONALD M GOULD | MARSHA S BERZON | FREDERIC BLOCK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4663718/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,665,565 | Gerardo Vazquez v. Jan-Pro Franchising Int'l Inc. | 2019-09-24 | 17-16096 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block, District Judge.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nGERARDO VAZQUEZ, GLORIA ... | RONALD M GOULD | MARSHA S BERZON | FREDERIC BLOCK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4665565/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,665,566 | Gerardo Vazquez v. Jan-Pro Franchising Int'l Inc. | 2019-09-24 | 17-16096 | U.S. Court of Appeals for the Ninth Circuit | {"judges": "Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and Frederic Block, District Judge.", "parties": "", "opinions": [{"author": "The Honorable Frederic Block, United States District Judge for the", "type": "010combined", "text": "FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR T... | RONALD M GOULD | MARSHA S BERZON | FREDERIC BLOCK | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4665566/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
8,444,081 | UNITED STATES v. Manuel ROMERO, Jr. | United States v. Romero | 2019-09-05 | No. 18-2180 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Ebel, Lucero, Tymkovich", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415522/", "author_raw": ""}, {"author": "", "type": "035concurrenceinpart", "text": "", "resource_uri": "https://www.courtlistener.com/api/... | EBEL | LUCERO | TYMKOVICH | 1 | {} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444081/ | Published | 0 | 1 | 0 | 1 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
8,444,082 | Shane WATTS v. Carrie WATTS | Watts v. Watts | 2019-09-05 | No. 18-4025 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Ebel, Phillips, Tymkovich", "parties": "", "opinions": [{"author": "", "type": "020lead", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/8415524/", "author_raw": ""}]} | EBEL | PHILLIPS | TYMKOVICH | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/8444082/ | Published | 0 | 1 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,661,630 | United States v. A.S. | 2019-09-17 | 19-9900 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "", "parties": "", "opinions": [{"author": "", "type": "010combined", "text": "", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4438883/"}]} | 0 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4661630/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||||||
4,662,427 | United States v. Holloway | 2019-09-19 | 18-4083 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Before HARTZ, MURPHY, and CARSON, Circuit Judges.", "parties": "", "opinions": [{"author": "CARSON, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH ... | HARTZ | MURPHY | CARSON | 1 | {"HARTZ": ", Circuit", "MURPHY": ", Circuit", "CARSON": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4662427/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,662,895 | United States v. McClaflin | 2019-09-20 | 18-1217 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Before MATHESON, SEYMOUR, and BACHARACH, Circuit Judges.", "parties": "", "opinions": [{"author": "SEYMOUR, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLI... | MATHESON | SEYMOUR | BACHARACH | 1 | {"MATHESON": ", Circuit", "SEYMOUR": ", Circuit", "BACHARACH": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4662895/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,662,896 | Kenney v. Helix TCS | 2019-09-20 | 18-1105 | U.S. Court of Appeals for the Tenth Circuit | {"judges": "Before HARTZ, SEYMOUR, and EID, Circuit Judges.", "parties": "", "opinions": [{"author": "SEYMOUR, Circuit Judge.", "type": "010combined", "text": "FILED\n United States Court of Appeals\n PUBLISH ... | HARTZ | SEYMOUR | EID | 1 | {"HARTZ": ", Circuit", "SEYMOUR": ", Circuit", "EID": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4662896/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,659,329 | United States v. Aseracare, Inc. | 2019-09-09 | 16-13004 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before ROSENBAUM and JULIE CARNES, Circuit Judges, and SCHLESINGER,∗ District Judge.", "parties": "", "opinions": [{"author": "JULIE CARNES, Circuit Judge:", "type": "010combined", "text": "Case: 16-13004 Date Filed: 09/09/2019 Page: 1 of 57\n\n\n ... | ROSENBAUM | JULIE CARNES | SCHLESINGER | 1 | {"ROSENBAUM": ", Circuit", "JULIE CARNES": ", Circuit", "SCHLESINGER": ", District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659329/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,659,566 | Patricia I. Ermini v. Mike Scott | 2019-09-10 | 18-11220 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.", "parties": "", "opinions": [{"author": "NEWSOM, Circuit Judge:", "type": "010combined", "text": "Case: 18-11220 Date Filed: 09/10/2019 Page: 1 of 29\n\n\n [PUBLISH]\n\n\... | WILLIAM PRYOR | NEWSOM | BRANCH | 1 | {"WILLIAM PRYOR": ", Circuit", "NEWSOM": ", Circuit", "BRANCH": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659566/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,659,714 | United States v. Alphonso I. Waters, Jr. | 2019-09-10 | 18-11333 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before ED CARNES, Chief Judge, JULIE CARNES, and CLEVENGER,∗ Circuit Judges.", "parties": "", "opinions": [{"author": "ED CARNES, Chief Judge", "type": "010combined", "text": "Case: 18-11333 Date Filed: 09/10/2019 Page: 1 of 32\n\n\n ... | ED CARNES | JULIE CARNES | CLEVENGER | 1 | {"ED CARNES": ", Chief", "JULIE CARNES": ", Circuit", "CLEVENGER": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4659714/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,660,546 | Kimberly Lowe v. STME, LLC | 2019-09-12 | 18-11121 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before JORDAN, GRANT and HULL, Circuit Judges.", "parties": "", "opinions": [{"author": "HULL, Circuit Judge:", "type": "010combined", "text": "Case: 18-11121 Date Filed: 09/12/2019 Page: 1 of 33\n\n\n [PUBLISH]\n\n\n\n IN... | JORDAN | GRANT | HULL | 1 | {"JORDAN": ", Circuit", "GRANT": ", Circuit", "HULL": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4660546/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,660,547 | AA Suncoast Chiropractic Clinic, P.A. v. Progressive American Insurance Company | 2019-09-12 | 17-13003 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before JORDAN, GRANT, and HULL, Circuit Judges.", "parties": "", "opinions": [{"author": "GRANT, Circuit Judge:", "type": "010combined", "text": "Case: 17-13003 Date Filed: 09/12/2019 Page: 1 of 21\n\n\n [PUBLISH]\n\n ... | JORDAN | GRANT | HULL | 1 | {"JORDAN": ", Circuit", "GRANT": ", Circuit", "HULL": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4660547/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,660,754 | United States v. Dane Gillis | 2019-09-13 | 16-16482 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before JILL PRYOR, ANDERSON, and HULL, Circuit Judges.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 16-16482 Date Filed: 09/13/2019 Page: 1 of 80\n\n\n [PUBLISH]\n\n\n\n ... | JILL PRYOR | ANDERSON | HULL | 1 | {"JILL PRYOR": ", Circuit", "ANDERSON": ", Circuit", "HULL": ", Circuit"} | 2 | 0 | 0 | 1 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4660754/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,661,573 | United States v. Kyle Adam Kirby | 2019-09-17 | 18-11253 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and ROBRENO,* District Judge.", "parties": "", "opinions": [{"author": "WILLIAM PRYOR, Circuit Judge:", "type": "010combined", "text": "Case: 18-11253 Date Filed: 09/17/2019 Page: 1 of 9\n\n\n ... | WILLIAM PRYOR | JILL PRYOR | ROBRENO | 1 | {"WILLIAM PRYOR": ", Circuit", "JILL PRYOR": ", Circuit", "ROBRENO": ", District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4661573/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,661,593 | United States v. Secretary Florida Agency for Health Care Administration | 2019-09-17 | 17-13595 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before JILL PRYOR, BRANCH, and BOGGS,∗ Circuit Judges.", "parties": "", "opinions": [{"type": "010combined", "text": "Case: 17-13595 Date Filed: 09/17/2019 Page: 1 of 66\n\n\n [PUBLI... | JILL PRYOR | BRANCH | BOGGS | 1 | {"JILL PRYOR": ", Circuit", "BRANCH": ", Circuit", "BOGGS": ", Circuit"} | 3 | 0 | 2 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4661593/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,661,912 | Albert Schaw v. Habitat for Humanity of Citrus County, Inc. | 2019-09-18 | 17-13960 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before TJOFLAT, MARCUS, and NEWSOM, Circuit Judges.", "parties": "", "opinions": [{"author": "NEWSOM, Circuit Judge:", "type": "010combined", "text": "Case: 17-13960 Date Filed: 09/18/2019 Page: 1 of 31\n\n\n [PUBLISH]\n\n\n\n ... | TJOFLAT | MARCUS | NEWSOM | 1 | {"TJOFLAT": ", Circuit", "MARCUS": ", Circuit", "NEWSOM": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4661912/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,662,007 | Rayvon Boatman v. Angela Berreto | 2019-09-18 | 19-11605 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before WILLIAM PRYOR, JORDAN, and NEWSOM, Circuit Judges.", "parties": "", "opinions": [{"author": "NEWSOM, Circuit Judge:", "type": "010combined", "text": "Case: 19-11605 Date Filed: 09/18/2019 Page: 1 of 6\n\n\n [PUBLISH]\n\n ... | WILLIAM PRYOR | JORDAN | NEWSOM | 1 | {"WILLIAM PRYOR": ", Circuit", "JORDAN": ", Circuit", "NEWSOM": ", Circuit"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4662007/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | ||||
4,662,206 | Managed Care Advisory Group, LLC v. Cigna Healthcare, Inc. | 2019-09-18 | 17-13761 | U.S. Court of Appeals for the Eleventh Circuit | {"judges": "Before JILL PRYOR and BRANCH, Circuit Judges, and REEVES,* District Judge.", "parties": "", "opinions": [{"author": "PER CURIAM", "type": "010combined", "text": "Case: 17-13761 Date Filed: 09/18/2019 Page: 1 of 34\n\n\n [PUBLISH]\n\n\n\n ... | JILL PRYOR | BRANCH | REEVES | 1 | {"JILL PRYOR": ", Circuit", "BRANCH": ", Circuit", "REEVES": ", District"} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4662206/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 9 | [
{
"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... |
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